State v. Briscoeray

• Decision Date: 19 April 1999
• Docket Number: No. 40618-3-I,40618-3-I
• Citation: 974 P.2d 912,95 Wn.App. 167
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Leonard L. BRISCOERAY aka Tony Williams, Appellant.

Page 167

95 Wn.App. 167

974 P.2d 912

STATE of Washington, Respondent, v. Leonard L. BRISCOERAY aka Tony Williams, Appellant.

No. 40618-3-I.

Court of Appeals of Washington,

Division 1.

April 19, 1999.

Stella Susan Buder, Washington Appellate Project, Seattle, for Appellant.

Andrew J. Ries, Deputy Prosecuting Attorney, King County Prosecutor, Appellate Unit, Seattle, for Respondent.

APPELWICK, J.

Leonard Briscoeray appeals his conviction for attempted second degree murder and second degree assault. He argues that the trial court erred in admitting as excited utterances certain incriminatory statements that the victim made soon after the assault. We review this assignment of error for abuse of discretion and not de novo. We hold that the trial court did not err in admitting the evidence. Although the victim later retracted the statements at issue, and testified that she had lied at the time of her contact with authorities, the original statements were nonetheless admissible as excited utterances. This is because there was substantial evidence that the statements were uttered while the victim was still under the stress of excitement caused by the startling event, and that the victim had not in fact had an opportunity to fabricate her story. Finally, we find no merit to the assignments of error that Briscoeray raises in his pro se supplemental brief. We therefore affirm the conviction.

FACTS

On the night of June 13, 1996, Bruce Heyward was working as a security officer in a guard shack at the Seward Park Estates apartment complex in Seattle. He received a phone call from an anonymous tenant describing domestic violence occurring in the apartment occupied by Leonard Briscoeray and his girlfriend, Maketa Brazier. About 30 or Heyward told the 911 operator what Brazier had just told him, that Briscoeray had pulled a gun on her and clicked it to her head. While Heyward was talking to the operator, Brazier told him that the gun contained one bullet; Heyward conveyed this information to the operator. Heyward then gave the receiver to Brazier to answer the operator's specific questions. Brazier told the operator that Briscoeray had fired a .380 caliber handgun loaded with one bullet at her but the gun had jammed, and that he had stepped on her face. Heyward testified that during the course of the call, Brazier was still upset and frantic.

                40 seconds after Heyward received the call, Brazier ran up to the guard shack crying and screaming, "He tried to kill me!   He tried to kill me!   Just call 911.  Call 911."   Heyward noticed bruising on Brazier's face.  He told her to calm down and tell him what happened.  She replied, "He tried to kill me, he tried to kill me.  He put the gun to my head, clicked it six times."   Heyward immediately called 911
                

While Brazier was still on the line, Police Officer Carpenter arrived at the guard shack. He noticed bruising on Brazier's face, and immediately asked her what had happened. Brazier explained that she was nine weeks pregnant and experiencing complications from her pregnancy, and that she and Briscoeray had been arguing about her inability to work overtime as a result of her pregnancy. She said that Briscoeray had thrown a beer bottle at her, pushed her to the floor and stepped on her head, then pointed a handgun directly at her face and pulled the trigger. The gun clicked but did not fire, and Briscoeray repeated the action several times. When Briscoeray removed the clip, she saw that it contained one bullet. Carpenter testified that Brazier seemed calm and controlled at first, but became upset and teary at times as she told him what happened. Brazier signed a written statement for Carpenter, which recounted essentially the same story.

After speaking with Officer Carpenter, Brazier went to a friend's house. Soon after, she experienced vaginal bleeding and her friend called an ambulance. While at the hospital Briscoeray was arrested on the morning of June 14, 1996. After his arrest, police executed a search warrant and found a .380 semiautomatic handgun in a couch in the living room. A police officer testing the gun discovered that it tended to jam.

Brazier spoke with a social worker, Scott Martin, about the fight with Briscoeray. She told Martin that Briscoeray had thrown a beer bottle at her, had shoved her to the floor and put a shoe on her forehead, and had pointed a loaded pistol at her face and pulled the trigger.

Briscoeray was charged by amended information filed in King County Superior Court, with one count of attempted murder in the second degree, RCW 9A.32.050(1)(a), and one count of assault in the second degree, RCW 9A.36.021(1)(c).

At pretrial hearings, Briscoeray's counsel objected to admission of the statements that Brazier had made to Heyward while he was talking to the 911 operator, statements she had made to Officer Carpenter and Social Worker Martin, and to Brazier's and Heyward's statements on the 911 tape. The court admitted the statements as exceptions to the hearsay rule. The court admitted Brazier's statements to Heyward, the 911 operator, and Carpenter as excited utterances. The court admitted Heyward's statements to the 911 operator as a present sense impression of an event or condition. The court admitted Brazier's statements to Social Worker Martin as statements made for the purposes of medical diagnosis or treatment.

The case was tried before a jury. At trial, Brazier denied that the incident occurred as she had previously described it. She admitted that she and Briscoeray argued that night, but denied that Briscoeray assaulted her or used a gun in any way. She claimed that he accidentally stepped on her head as he tried to restrain her. She testified that the couple argued primarily because Briscoeray had threatened to leave her. She explained that this made her angry, and she decided to make up a story about a gun in order to have Briscoeray arrested. She claimed that she made up the Despite Brazier's recantation, the jury found Briscoeray guilty as charged. The court sentenced him to 150 months in prison. Briscoeray appeals.

story before she got to the guardhouse. She testified that she knew Briscoeray had previously had possession of a gun that tended to jam.

ANALYSIS

Briscoeray essentially argues that the trial court erred in admitting as excited utterances the statements that Brazier made to Security Officer Heyward after he had begun the 911 call, and the statements she made to the 911 operator and to Police Officer Carpenter.

Standard of Review

The parties dispute what is the proper standard of review. The State claims that the proper standard is abuse of discretion. In support, the State cites State v. Hardy, 83 Wash.App. 167, 176, 920 P.2d 626 (1996) (citing State v. Strauss, 119 Wash.2d 401, 417, 832 P.2d 78 (1992)).

Briscoeray argues, however, that the proper standard of review is de novo. He relies on a recent Division III case, in which that court stated that "while deference is usually given to trial court rulings on evidence matters, this is not necessarily true with the excited utterance exception." State v. Sharp, 80 Wash.App. 457, 460, 909 P.2d 1333 (1996). The court explained, "[t]he events surrounding the utterance here occurred two months before the trial. The trial court, accordingly, is in no better position than we are to evaluate the circumstances surrounding [the witness's] utterance." Sharp, 80 Wash.App. at 461, 909 P.2d 1333. The court cited a Supreme Court case, State v. Brown, 127 Wash.2d 749, 903 P.2d 459 (1995), in support of its conclusion that abuse of discretion was not the proper standard. Sharp, 80 Wash.App. at 460-61, 909 P.2d 1333.

We decline to follow Division III's interpretation of Brown. We read Brown to say that the trial court abused its discretion in that case, not that the abuse of discretion standard is improper in excited utterance cases generally.

The trial court in Brown abused its discretion in admitting the statements at issue, because it improperly applied the excited utterance rule. In that case, the victim was allegedly raped by four men including the defendant. Brown, 127 Wash.2d at 752, 903 P.2d 459. Immediately after the rape, the victim returned to her own apartment and discussed the situation with her boyfriend, and then decided to tell police that she had been abducted into defendant's apartment. Brown, 127 Wash.2d at 753, 903 P.2d 459. She later recanted, testifying at trial that she voluntarily went to defendant's apartment to perform sex for money. Brown, 127 Wash.2d at 752, 903 P.2d 459. She lied to police because she thought they would not believe she was raped if she admitted agreeing to sex initially. Brown, 127 Wash.2d at 753, 903 P.2d 459. Only after making the decision to lie did she call 911 to report the rape. Brown, 127 Wash.2d at 753, 903 P.2d 459.

Despite the evidence of the victim's fabrication, the trial court admitted the 911 tape as an excited utterance. Brown, 127 Wash.2d at 752, 903 P.2d 459. The Court of Appeals affirmed, reasoning that it was within the trial court's discretion to weigh the...