State v. Burns, 85-438-C

• Decision Date: 21 April 1987
• Docket Number: No. 85-438-C,85-438-C
• Citation: 524 A.2d 564
• Court: Rhode Island Supreme Court
• Parties: STATE v. Kenneth Ray BURNS. A.

Page 564

524 A.2d 564

STATE v. Kenneth Ray BURNS.

No. 85-438-C.A.

Supreme Court of Rhode Island.

April 21, 1987.

James E. O'Neil, Atty. Gen., Mary Rogers, Thomas Dickinson, Asst. Attys. Gen., for plaintiff.

William F. Reilly, Public Defender, Paula Rosen, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

FAY, Chief Judge.

This appeal follows a verdict by a Superior Court jury that found the defendant, Kenneth Ray Burns (Burns), guilty of having committed second-degree sexual assault ¹ against his stepdaughter, Ann, ² in violation of G.L.1956 (1981 Reenactment) § 11-37-4, as amended by P.L.1981, ch. 119, § 1.

Second-degree sexual assault is defined in § 11-37-4 as follows:

"A person is guilty of a second degree sexual assault if he or she engages in sexual contact with another person and if any of the following circumstances exist:

(A) The victim is thirteen (13) years of age or under.

(B) The accused knows or has reason to know that the victim is mentally incapacitated, mentally defective or physically helpless.

(C) The accused uses force or coercion.

(D) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification or stimulation."

Sexual contact within that statute is defined in § 11-37-1 as

"Sexual contact--the intentional touching of the victim's or accused's intimate parts, clothed or unclothed, if that intentional touching can be reasonably construed as intended by the accused to be for the purpose of sexual arousal, gratification or assault."

The defendant raises several exceptions on appeal. They are (1) that the trial justice committed reversible error when he ruled that the victim's mother could testify regarding hearsay statements made to her by the victim soon after an assault, under the spontaneous-utterance exception to the hearsay rule; (2) that the trial justice committed reversible error when he denied defendant's motion to pass and allowed the admission of evidence of a prior bad act of defendant when it did not fall under any exception to the general rule that evidence of prior bad acts or crimes is irrelevant and inadmissible; (3) that the state violated discovery procedures since the testimony concerning the prior bad act was not given to defendant prior to its use in trial; and (4) that the prosecutor's statement in closing argument concerning the same prior bad act was improper and prejudicial and therefore the trial justice's refusal to pass the case was reversible error.

In this case, the eleven-year-old victim, Ann, took the stand and testified about events that occurred some two years earlier, during the summer of 1983. ³ Her testimony principally concerned a sexual assault that occurred on August 26, 1983, a night on which her mother took her brother to the doctor and Ann was left at home with defendant. Ann testified that defendant asked her to go into the bedroom and take off her clothes. The defendant then came in and had her put on a slip. Ann then testified that defendant "French kissed" her, kissed and rubbed her breasts, and rubbed her vagina with his hand. She further testified that she did nothing to stop defendant as she was "too scared" of him because he had "hurt her."

When Mrs. Burns, Ann's mother, came home after the episode was over, she thought the pair looked "suspicious." She wondered why the child was already in her pajamas; yet when she asked her daughter, her daughter gave no reason.

The defendant left the house within minutes of Mrs. Burns's arrival. Her mother asked Ann again what was the matter, and this time, as the child began to speak, her eyes filled with tears and she hesitantly related the details of the assault.

It was at this point at trial during Mrs. Burns's testimony, as Mrs. Burns was about to testify as to what her daughter had said, that defendant entered a timely objection, which the trial justice overruled. Mrs. Burns was then allowed to testify about the principal assault; however, she also included testimony concerning events that occurred prior to the principal assault. It also appears from the record that Mrs. Burns was confused about when certain statements were made by Ann to her, whether on that same night or in subsequent discussions throughout the following week.

I

The defendant argues here that the requisite foundation necessary for admission of hearsay under the spontaneous-utterance exception had not been established by the state. Specifically, defendant argues that the mother did not know when Ann made the statements, whether it was immediately following the assault or during the next few days after the assault. Second, defendant argues that the child's tears were merely due to the guilt and shame of having to recite the details of the assault, not due to the excitement of the assault itself. The defendant also argues that the witness was allowed to testify about statements made by the victim that did not relate to the circumstances of the exciting event that gave rise to the statements, but concerned past events. Last, defendant argues that because the statements were in response to questions asked by the mother, the spontaneous-utterance exception cannot apply.

In State v. Jalette, 119 R.I. 614, 620, 382 A.2d 526, 530 (1978), we stated that "[w]hile there is no explicit rule as to what constitutes an admissible spontaneous utterance, it is recognized that each statement must be considered within the context of the circumstances which prevailed at the time of its utterance." ⁴ (Emphasis added.) See also State v. Poulin, 415 A.2d 1307 (R.I.1980).

We also said in State v. Crowhurst, 470 A.2d 1138, 1145 (R.I.1984), that

"the trial justice, in considering the admission of alleged spontaneous utterances, must look at all the facts and circumstances before ruling whether or not the hearsay declarant was still laboring under the stress of the exciting event when he or she spoke. State v. Creighton R.I., 462 A.2d 980 (1983). The essence of the excited-utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned. Consequently, the evidence must be judged in terms of spontaneity and an analysis of whether the declaration is the result of thoughtful consideration or the product of an exciting event. The decision about whether the utterance was the result of thoughtful consideration or was the product of an exciting event is a matter addressed to the sound discretion of the trial justice and, once made, will not be overturned unless clearly wrong."

Based upon our own independent review of the record, see State v. Poulin, 415 A.2d at 1311 n. 2; State v. Jalette, 119 R.I. at 621, 382 A.2d at 530, we cannot say that the trial justice was clearly wrong in admitting the testimony that dealt with the details of the August 26, 1983 incident under the spontaneous-utterance exception to the hearsay rule.

The record in the case at bar indicates that even though Mrs. Burns was admittedly confused about when some of Ann's statements were made to her, she stated unequivocally on cross-examination that she was sure that at least those statements that described the August 26, 1983 incident were made by Ann to her on that same night. With respect to these particular statements, the time-frame aspect of the spontaneous utterance exception was sufficiently established since further testimony also showed that these statements were made within minutes of Mrs. Burns's arrival home and within hours of the incident itself. See State v. Creighton, 462 A.2d 980, 982 (R.I.1983) (strict contemporaneity is not required "[g]enerally * * * a less demanding time requirement is necessary in sexual-offense cases, particularly when the victim is a child of tender years"). Mrs. Burns also testified that she thought that Ann looked "upset" and behaved "suspiciously." Ann testified that she was afraid of Mr. Burns. Further, she would not speak of the incident while her stepfather was still present. Her mother testified that after Mr. Burns had left the house, she again asked the child if anything had happened and that at that point the child began to speak and her eyes filled up with tears. Clearly there is ample evidence upon which the trial justice could base his evidentiary ruling.

The fact that a statement was made in response to an inquiry does not render the spontaneous-utterance doctrine inapplicable. Creighton, 462 A.2d at 982. It is merely a factor to be considered in evaluating the statement's spontaneity. State v. St. Jean, 469 A.2d 736, 738 (R.I.1983). Further, each situation must be evaluated on a case-by-case basis. Id. "[T]he crucial question is whether from a consideration of all the facts the trial justice is satisfied that the declarant was still laboring under the stress of nervous excitement when [s]he spoke." State v. Benton, 413 A.2d 104, 111 (R.I.1980). "It is axiomatic that the statement be 'free from the elements of design, contrivance and self-service * * *.' " St. Jean, 469 A.2d at 738 (quoting In re Daniel, 456 A.2d 258, 260 (R.I.1983)).

Based upon the evidence of the child's demeanor and the facts and circumstances surrounding the statements--the child's fear of Mr. Burns, her hesitancy in speaking about the incident, her tender years, the short time between the incident and the arrival home of someone she could trust (see State v. Nordstrom, 104 R.I. 471, 477, 244 A.2d 837, 840 (1968)), and even the fact that her statements were in partial response to her mother's questions--we cannot say that the trial justice abused his discretion in finding that the statements were sufficiently trustworthy and not the product of deliberation and/or contrivance. The testimony of Mrs. Burns, which described the details of the August 26, 1983 assault, was properly admitted.

More problematic, however, is the admission of testimony that went beyond the description of the exciting event. In that...