State v. Canida, 398--I
| Decision Date | 16 February 1971 |
| Docket Number | No. 398--I,398--I |
| Citation | 4 Wn.App. 275,480 P.2d 800 |
| Parties | STATE of Washington, Respondent, v. Maurice L. CANIDA, Appellant. |
| Court | Washington Court of Appeals |
Robert L. Butchart, Seattle, for appellant.
Robert E. Schillberg, Snohomish County Pros. Atty., James D. Twisselman, Deputy Pros. Atty., Everett, for respondent.
Maurice L. Canida was tried and convicted of indecent exposure involving two 6-year-old girls who testified at his trial. His appeal presents three issues to this court: (1) the competency of the two children to testify; (2) the admissibility of testimony by their mothers regarding statements made by the children after the incident; and (3) the use of leading questions during the direct examination of the children.
We hold Canida's assignment of error regarding the competency of the children as witnesses to be without merit for the reasons stated in State v. Sims, Wash. App., 480 P.2d 228 (1970).
The mothers of the two girls, during their testimonies, related statements made by their children after the incident. One child, shortly after the incident occurred, burst into her home with a 'funny look on her face' and in response to her mother's inquiries as to what was wrong, told of the incident. The mother of the second child was informed of the statement of the first child by that child's mother. She then asked her child whether any of the men across the street had done anything. The child's answer was, 'Yes, one had his pants open.' Both children identified Canida to their mothers as the offending party. It appears from the record the exposure and the children's statements relating to it occurred within the same afternoon.
Canida contends the mothers' testimonies were not admissible under the Res gestae exception to the hearsay rule. Our Supreme Court has indicated the elements of the Res gestae exception to the hearsay rule are:
(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact, and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.
Beck v. Dye, 200 Wash. 1, 9, 92 P.2d 1113, 1117, 127 A.L.R. 1022 (1939). Exceptions are made ot the rule excluding hearsay statements whenever reason and logic suggest their relability and trustworthiness. 5 J. Wigmore, Evidence §§ 1420, 1422 (1940). The reliability of statements coming within the Beck rule is furnished by the excitement or spontaneity of their declaration which suspends the witness's power of reflection or fabrication. C. McCormick, Law of Evidence § 272 (1954).
The elements of the rule as set out in Beck are the accepted law of our state. Johnston v. Ohls, 76 Wash.2d 398, 405, 457 P.2d 194 (1969). The label 'res gestae' is confusing, however, as it does not demonstrate correctly the reasons for the rule. 1 The term 'excited utterance' more clearly represents the reason for the exception and should be used.
The statements made by the children to their mothers comply with the six elements of the excited utterance exception. The fact the statements were responses to the mothers' questions does not forbid their use. State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968); Robbins v. Greene, 43 Wash.2d 315, 261 P.2d 83 (1953). The admissibility of excited utterances, in all cases, depends upon whether the declarant was still under the influence of the event so that his statement could not have been the result of fabrication, intervening actions, or the exercise of choice or judgment. Johnston v. Ohls, Supra. We believe the declarants were still so influenced here. The spontaneity of the first child's statement is...
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