State of Idaho v. THORNGREN

• Decision Date: 01 October 2010
• Docket Number: No. 36926.,36926.
• Citation: 240 P.3d 575,149 Idaho 729
• Parties: STATE of Idaho, Respondent, v. Donna Kay THORNGREN, Defendant-Appellant.
• Court: Idaho Supreme Court

149 Idaho 729

240 P.3d 575

STATE of Idaho, Respondent,

v.Donna Kay THORNGREN, Defendant-Appellant.

No. 36926.

Supreme Court of Idaho,

Boise, August 2010 Term.

Oct. 1, 2010.

Greg S. Silvey, Kuna, for appellant.

The Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

J. JONES, Justice.

Donna Kay Thorngren appeals her conviction for first degree murder. We affirm.

I. Factual and Procedural History

Donna Thorngren's husband, Curtis, was murdered on January 12, 2003. A grand jury indicted Donna for Curtis' murder and indicted her son, Austin, as an accessory to murder. Donna and Austin were to be tried in a joint proceeding. However, Donna filed a pretrial motion to sever her trial from Austin's, claiming a joint trial would violate her Confrontation Clause rights. Specifically, the State sought to introduce a statement Austin made to his friend, Adam Ketterling, tending to incriminate his mother in the murder. If admitted, the statement would arguably violate Donna's Confrontation Clause rights should Austin invoke his Fifth Amendment right not to testify. The statement occurred after a conversation between Donna and Austin in a shed outside Donna's mother's home on the day Curtis was murdered, but before his body was discovered. Ketterling entered the shed shortly after Donna left ¹ and found Austin visibly shaken. When Ketterling asked Austin what was wrong, he said “I think my mom did it.” This statement is referred to as the “shed statement.”

Upon further questioning of Ketterling at the grand jury hearing, Ketterling testified he believed this statement meant “she [Donna] killed his dad [Curtis] that morning.”

Donna's motion to sever was heard on April 19, 2007, and at the conclusion of the hearing the district court ruled that it would sever Austin's and Donna's trials. In the context of deciding the Confrontation Clause issue, the court stated the shed statement “would not be admissible as against Donna” as an excited utterance because it was in response to a question.

The shed statement also played a part in a motion Donna filed on March 30, 2007, to dismiss the first degree murder charge against her, based upon alleged irregularities in the grand jury proceedings. Donna contended that the indictment for the first degree murder charge was based upon inadmissible evidence (the shed statement) and, in the absence of such evidence, there was insufficient evidence presented before the grand jury to support a probable cause determination. One week before trial, the district court issued its written opinion denying the motion to dismiss and holding the shed statement would be admissible as an excited utterance. Donna filed a motion for continuance arguing the changed ruling impaired her trial strategy, specifically citing only the lack of preparation for Ketterling's impeachment as a basis for granting the motion. The district court denied the motion stating that such “generalized statements as to the difficulties that the defense might face” were insufficient grounds for granting the motion. The matter proceeded to trial and Donna was convicted of first degree murder.

Donna appealed her conviction arguing the district court: (I) abused its discretion by admitting the shed statement as an excited utterance; (II) violated Donna's right to due process by changing its ruling on the shed statement one week before trial; and (III) abused its discretion in refusing to grant a continuance in light of its changed ruling. The Court of Appeals heard the appeal and affirmed Donna's conviction. Donna sought, and we granted, review.

II. Issues on Appeal

I. Whether the district court abused its discretion in finding that the shed statement was admissible as an excited utterance under Idaho Rule of Evidence 803(2).

II. Whether the district court's ruling on the admissibility of the shed statement denied Donna due process.

III. Whether the district court abused its discretion in refusing to grant a continuance.

III.

A. Standard of Review

When we review a case previously decided by the Court of Appeals, “this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court.” In re Doe, 144 Idaho 819, 821, 172 P.3d 1094, 1096 (2007). The district court's decision to admit evidence is reviewed for an abuse of discretion. State v. Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007).

B. Admissibility of the Shed Statement

Donna contends the district court erred in admitting the shed statement as an excited utterance because the district court pointed out several factors cutting against its admission and then admitted it anyway. She argues that admission of the statement as an excited utterance was not harmless error because it is likely the jury would have reached a different result in the absence of the statement. The State asserts the statement is an excited utterance or, in the alternative, its admission was permissible for a non-hearsay purpose to demonstrate Donna's knowledge of Curtis' death before his body was discovered. We conclude that the district court properly admitted the shed statement as an excited utterance because news of Curtis' death was sufficiently startling to render inoperative Austin's reflective thought process and, although in response to a general question, the statement was a spontaneous reaction to his mother's apparent involvement in the murder. Because we conclude the statement qualifies as an excited utterance, we need not consider the other proffered arguments.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Idaho R. Evid. 801(c). Hearsay is inadmissible except in those circumstances provided by the Idaho Rules of Evidence. Idaho R. Evid. 802. One such circumstance arises when the statement constitutes an excited utterance. Idaho R. Evid. 803. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Idaho R. Evid. 803(2). An excited utterance has two requirements: “(1) an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of an observer; and (2) the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Field, 144 Idaho at 568, 165 P.3d at 282. In determining whether a hearsay statement falls within the excited utterance exception, a court considers the totality of the circumstances, including: “the amount of time that elapsed between the startling event and the statement, the nature of the condition or event, the age and condition of the declarant, the presence or absence of self-interest, and whether the statement was volunteered or made in response to a question.” Id. (quoting State v. Hansen, 133 Idaho 323, 325, 986 P.2d 346, 348 (Ct.App.1999)).

Admission of a statement under the excited utterance exception to the hearsay rule is within the discretion of the court and will not be overturned absent an abuse of discretion. Id. at 567-68, 165 P.3d at 281-82. In determining whether the district court abused its discretion, this Court considers whether the district court: (1) perceived the issue as one of discretion; (2) acted within the bounds of that discretion and consistent with established legal standards; and (3) reached its decision through the exercise of reason. Id. at 568, 165 P.3d at 282.

The district court based its determination that the shed statement was admissible at trial as an excited utterance based upon the following portion of Ketterling's grand jury testimony:

[State]. Where did you go?

[Ketterling]. Back out to the shed.

[State]. Who was in the shed?

[Ketterling]. Austin.

[State]. Where was he?

[Ketterling]. Still on the couch, I believe?

[State]. And do you remember Austin saying anything to you at that time?

[Ketterling]. Yes. I asked him what was wrong because he was visibly shaken, and he said, I think [Donna] did it.

[State]. Did you have any idea what he was talking about?

[Ketterling]. Yeah. Yes, I did. I don't know, I just got the feeling right when he said it. There had been so much buildup and talk about them wanting to get [Curtis] out of the picture and all that, that I just kind of got the feeling that that's what he was talking about.

[State]. [Ketterling], help us understand when you said, you asked him what was wrong, what was he doing to make you think something was wrong?

[Ketterling]. He just didn't seem to be himself. He seemed down, almost in shock. He say [sic] really shaky.

[State]. Was he like that when he made that statement to you?

[Ketterling]. Yes.

Considering the totality of the circumstances, this testimony provides adequate foundation for admitting the shed statement as an excited utterance. Regarding the first Field factor of time, this testimony implies Ketterling went back to the shed shortly after Donna left. This inference is reasonable because Ketterling had walked in on the conversation between Austin and Donna and was asked by Austin if he could “give me a minute to talk to my mom.” From there, Ketterling waited on the porch until Donna left and, upon seeing Donna leave, went “[b]ack out to the shed.” While there is much dispute in the record about this time frame, including evidence that up to thirty minutes lapsed before Ketterling re-entered the shed, the grand jury testimony provides a reasonable basis to infer the shed statement occurred shortly after Donna spoke to Austin.

Appellant cites State v. Hansen to support her argument that the five to thirty minute wait before Ketterling entered the shed was long enough for Austin to reflect on the news of his father's murder and therefore invalidates the statement as an excited...