State v. Chapin

• Decision Date: 19 March 1992
• Docket Number: No. 58094-4,58094-4
• Citation: 826 P.2d 194,118 Wn.2d 681
• Parties: STATE of Washington, Petitioner, v. Richard CHAPIN, Respondent.
• Court: Washington Supreme Court

Page 681

118 Wn.2d 681

826 P.2d 194

STATE of Washington, Petitioner, v. Richard CHAPIN, Respondent.

No. 58094-4.

Supreme Court of Washington En Banc.

March 19, 1992.

Michael Sullivan, Pacific County Prosecutor, James A. Conley, Deputy, South Bend, for petitioner

Leslie Stomsvik, Tacoma, for respondent.

GUY, Justice.

Richard Chapin was convicted of the second degree rape of a patient in the nursing home where Chapin worked as a nurse's aide. A key part of the evidence upon which the trial court relied in convicting Chapin was the alleged victim's statement, "Raped me", which he uttered to his wife and seemingly in reference to Chapin. Because the alleged victim was incompetent to testify, the trial court admitted the statement under ER 803(a)(2), the excited utterance exception to the hearsay rule. The Court of Appeals reversed, holding that the excited utterance exception was inapplicable, and that without the hearsay statement the evidence was insufficient to support the conviction. We affirm the Court of Appeals.

FACTS

Richard Chapin began working as a certified nurse's aide at the Ocean View Convalescent Center in Long Beach, Washington, in June 1987. The incidents forming the basis for the present action occurred a week or so later, on June 22 or 23, 1987.

One of Chapin's patients at the Center was Orval Hillison, a 69-year-old man with Alzheimer's disease, who had been residing at the Center since December 1986. Hillison was physically healthy and able to walk without assistance. He was also frequently confused and prone to wandering away. For this reason he was restrained in a geriatric wheelchair for much of the day.

Hillison was cared for by several nurse's aides. One such aide was Jean Jeschke, who testified she first learned of a problem regarding Hillison one afternoon shortly after reporting for her work shift. At that time, Jeschke was informed by the nurse going off duty that Hillison had exhibited some "unusual and belligerent" behavior. Jeschke also stated that normally Chapin tended the male patients and Jeschke tended the female patients. On this particular day, however, Chapin asked Jeschke immediately after they Later Jeschke visited Hillison in his room, where she found him behaving normally. During the visit, Chapin walked by in the hallway. Jeschke testified that when Hillison saw Chapin, he picked up a water pitcher, threw it at him, shouted obscenities at him, and threatened to kill him. After Chapin left, Jeschke asked Hillison what was the matter, and he replied only that he wanted Chapin kept away from him. Jeschke stated that she had never seen Hillison behave in this way. A short while later, Chapin passed by in the hallway again, eliciting another angry outburst from Hillison. Jeschke calmed Hillison down and started to take him for a walk. They had not gone far when Jeschke noticed that Hillison was walking with a "painful gait". Hillison was in such pain that Jeschke decided not to take him for a walk. She instead returned Hillison to his room where she seated him in his geriatric wheelchair. Chapin entered the room across the hall shortly afterwards, and this prompted another angry outburst from Hillison.

                had reported for work to change patients with him for the day.   Jeschke refused to do so
                

Some time later, and after Jeschke had left the room, Hillison's wife, Maeford, arrived to visit him. She decided to take her husband for a walk and called for Chapin to come help him use the bathroom. Maeford testified that when Chapin walked into the room, Hillison immediately started shouting at him and threatening him. Maeford began trying to calm Hillison down and had him sit down on the bed. Hillison started to cry, which, Maeford testified, she had never seen before. Jeschke, responding to the commotion, reentered the room about this time. Maeford tried to explain to her husband that he should be friendly to the attendants because they were there to help him. In response to Maeford's questioning as to why he did not like Chapin, Hillison said, "Raped me".

Maeford and Jeschke further calmed Hillison down, then Jeschke took him into the bathroom to change his pants because he had wet himself. At this time Jeschke made a quick visual inspection of Hillison's rectal area, which she Chapin was later charged with second degree rape. Because Hillison was incompetent to testify, the trial court ruled that his statement, "Raped me", although hearsay, was admissible as an excited utterance. The jury found Chapin guilty, and he received an exceptional sentence of 36 months' imprisonment.

                observed to be "very red and irritated and swollen".   This was the only physical examination of any kind that was done on Hillison in connection with the alleged rape
                

ISSUES

This case presents two issues for review. First, was Hillison's statement properly admitted as an excited utterance under ER 803(a)(2)? Second, if Hillison's statement was not admissible, was the remaining evidence sufficient to support the conviction? We answer no to both issues.

ANALYSIS

I

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." ER 801(c). The hearsay rule excludes hearsay from being admitted as evidence except as specifically provided by the rules of evidence, court rules, or statute. ER 802. The theory of the hearsay rule is that cross examination is the best way to reveal whatever untrustworthiness lies beneath the assertions of a witness. 5 J. Wigmore, Evidence § 1362, at 3 (Chadbourn rev. 1974). The hearsay rule thus represents "a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination". (Emphasis omitted.) 5 J. Wigmore, at 3.

A statement's reliability may be established in other ways besides cross examination, however, and recognition of this is expressed in the many exceptions to the hearsay rule. A statement that qualifies for admission under "a 'firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability." White v. Illinois, --- U.S. ----, ----, 112 The excited utterance exception is stated in ER 803(a)(2), which provides:

S.Ct. 736, 743, 116 L.Ed.2d 848 (1992); see generally 5 J. Wigmore, Evidence § 1420, at 251.

(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

...

(2) Excited Utterance. 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.

This exception is based on the idea that "under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control". 6 J. Wigmore, Evidence § 1747, at 195. The utterance of a person in such a state is believed to be "a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock", rather than an expression based on reflection or self interest. 6 J. Wigmore, at 195. The excited utterance exception allows for a statement to be admitted without any showing that the declarant is unavailable as a witness. This is consistent with the requirement of the Confrontation Clause of the Sixth Amendment to the United States Constitution. White v. Illinois, supra, --- U.S. at ----, 112 S.Ct. at 743-44.

Three closely connected requirements must be satisfied for a hearsay statement to qualify as an excited utterance. First, a startling event or condition must have occurred. Second, the statement must have been made while the declarant was under the stress of excitement caused by the event or condition. Third, the statement must relate to the startling event or condition.

Two principles are relevant regarding the requirement that a startling event or condition must have occurred. First, the startling event or condition that must occur for purposes of the excited utterance exception need not be the "principal act" underlying the case. 6 J. Wigmore, Evidence § 1753, at 225-26. For example, a later startling event may trigger associations with an original trauma, recreating the The second important principle regarding the requirement of a startling event or condition is that the startling nature of an event cannot be determined merely by reference to the event itself. Again Napier is illustrative. There is nothing inherently startling about being shown a picture in a newspaper. Nonetheless, the assault victim in Napier was understandably startled when she was unexpectedly confronted with a photograph of the man who almost beat her to death. What makes an event startling is its effect upon those perceiving it, and an event might be startling to some but not to others. For purposes of the excited utterance exception, therefore, it is the event's effect on the declarant that must be focused upon. See State v. Carlson, 311 Or. 201, 216, 808 P.2d 1002 (1991).

                stress earlier produced and causing the person to exclaim spontaneously.   This is vividly illustrated in United States v. Napier, 518 F.2d 316 (9th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975).   There, the victim of an assault was unexpectedly shown a picture of the alleged assailant in a newspaper 8 weeks after the attack.   This caused her to become excited and to exclaim, "He killed me, he killed me".   The court held that the statement was admissible as an excited utterance.  518 F.2d at 317-18.   The court explicitly stated that the "startling event" was not the assault, but the victim being confronted with the photograph of her assailant.  518 F.2d at 318
                

The second element of ER 803(a)(2) is that the statement must have been made while the declarant was under the stress of excitement caused by the startling...