State v. Cude

• Decision Date: 29 December 1989
• Docket Number: No. 880115,880115
• Citation: 784 P.2d 1197
• Parties: STATE of Utah, Plaintiff and Appellee, v. Bernard Franklin CUDE, Jr., Defendant and Appellant.
• Court: Utah Supreme Court

Page 1197

784 P.2d 1197

STATE of Utah, Plaintiff and Appellee, v. Bernard Franklin CUDE, Jr., Defendant and Appellant.

No. 880115.

Supreme Court of Utah.

Dec. 29, 1989.

Dan R. Knowlton, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Barbara Bearnson, Salt Lake City, for plaintiff and appellee.

HALL, Chief Justice:

Defendant Bernard Franklin Cude, Jr., appeals his conviction for aggravated burglary and aggravated sexual assault in violation of Utah Code Ann. §§ 76-6-203 (1978) (amended 1988 & 1989) and 76-5-405 (Supp.1988) (amended 1989). He claims that (1) the trial court erred in refusing to admit into evidence out-of-court statements defendant made to his clergyman, (2) the prosecutor made an improper remark in her closing argument that the court failed to correct, (3) defendant should have been convicted of attempted rape or forcible sexual abuse rather than aggravated sexual assault, (4) the court erred in refusing to allow argument or instruct the jury on potential sentences defendant might receive, and the instruction on penalty the court did give was erroneous, (5) defendant's minimum mandatory sentence is unconstitutional, and (6) defendant was denied his right to compulsory process and discovery. We affirm.

The victim in this case was home alone in the late evening when she became alarmed at her dog's incessant barking. She armed herself with a costume dagger and approached her bedroom--the area disturbing the dog. After she turned on the light, an attacker grabbed her, threw her on her bed, beat her, pulled off her top, and touched her breast. She could feel his erection as he lay on top of her. He tried to remove her pants, but was unsuccessful. The victim stabbed her attacker several times with the dagger. He tried to stay her defense, but ultimately fled the home, bleeding from his wounds.

Defendant arrived at his home that night shortly after the victim was attacked. His clothing was bloody, and his hands were cut; he also suffered from stab wounds on other areas of his body. His wife summoned their clergyman neighbor to assist defendant. The clergyman found defendant in a bathroom cleaning his wounds. Defendant offered the clergyman a "somewhat confusing" alibi for how he received his wounds, but at trial the clergyman's recitation of defendant's alibi was excluded as inadmissible hearsay. Defendant elected not to testify in his own defense.

The victim described the attacker to police--she had concentrated on his face during the attack, knowing that she would be required to identify him. She did not hesitate when she later picked his picture from a photo spread. Experts testified that defendant's wounds were consistent with having been made by a dagger and that they appeared to be defensive wounds. The wounds were generally in the areas in which the victim testified she inflicted them. Shoeprints matching those made by defendant's shoes were found outside the victim's home, and blood matching the characteristics of defendant's blood was found in the victim's room. Finally, a fingerprint positively identified as defendant's was found on the frame of the screen the attacker removed from the victim's window.

The jury found defendant guilty of aggravated burglary and aggravated sexual assault. The court sentenced defendant to five years to life for the aggravated burglary conviction and a minimum mandatory five-year-to-life term for the aggravated sexual assault conviction, the sentences to run concurrently.

Defendant claims that the court erred in excluding from trial the clergyman's recitation of defendant's out-of-court statement. He claims the testimony is admissible as an excited utterance under rule 803 of the Utah Rules of Evidence.

Hearsay is generally deemed untrustworthy since at the time of the declaration, the declarant is not under oath and at trial only the witness to the declaration--not the declarant--is available for cross-examination. ¹ Some hearsay, however, is considered reliable because of the circumstances under which the declaration is made. Rule 803(2) excepts from the hearsay rule "excited utterances." 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." ² "The theory of Exception (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." ³

A statement is admissible under rule 803(2) only if three conditions are satisfied: "(1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling event or condition." ⁴ Presumably, defendant's clergyman would have testified that defendant told him he had been in an automobile accident and an ensuing knife fight and that defendant had come directly home from the altercation to clean his hands. While this account satisfies the first and third requirements, it does not necessarily fulfill the second.

The clergyman testified outside the presence of the jury that the distance from what he understood to be the location of the purported fray to defendant's home was some 17 blocks--a five- to seven-minute trip. Another short period elapsed between defendant's arrival home and his conversation with his clergyman. As noted by this Court in State v. Thomas, ⁵ " 'The crucial question ... is whether the statement was made while the declarant was still under the influence of the event to the extent that his statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.' " ⁶

Generally, the shorter the gap between the startling event and the utterance, the more reliable the statement since the excitement of the event is unlikely to have yielded to reasoned reflection and conscious fabrication. However, the length of time between the event and the declaration is not a yardstick by which reliability can be measured. ⁷ The more accurate gauge--and the more difficult to read--is the state of the declarant's mind. ⁸

Defendant cites State v. Kaytso ⁹ for the proposition that a lapse between the event and the declaration does not prevent a statement from being an excited utterance. We agree; it is not necessarily the time lapse that disqualifies a statement as an excited utterance, but rather the determination that the declarant was no longer under the stress of the event. ¹⁰ Kaytso involved statements made by a nine-year-old victim after she was raped by her sister's boyfriend. This Court recognizes that excitement generally lasts longer in children and fabrication is less likely. ¹¹ Despite the two-hour lapse between the victim's rape and her statements, we found no error in the trial court's determination that the victim was still under the stress of the event. There are substantial differences, however, between a child's description of her rape to a doctor and a police officer and an adult's explanation of a lacerated hand to his wife and clergyman neighbor.

Was defendant still under the stress of the event? According to proffered evidence, he drove home 17 blocks, parked his truck, removed his bloody clothing and left it in the garage, and was in the process of washing his wounds before he offered his declaration. While defendant appeared nervous and agitated, his actions were controlled and responsible. Whether his alibi was fabricated is unknown, but that is not the issue. The real issue was articulated by the trial court:

[I]s [defendant] smart enough, in a period of five or ten minutes or whatever period of time lapses from the time the injury occurs until he arrives at home, to come up with a logical explanation that his wife will accept or his family will accept or the neighbors will accept, regarding the source of his injury?

The court found that defendant was not under the stress of the event, that he was capable of reasoned reflection, and that the statement to his clergyman was not an excited utterance. This Court will not disturb a trial court's ruling on the admissibility of evidence absent a showing of clear error. ¹²

Defendant next claims that the prosecutor misstated the evidence in her closing argument and that the court erred by not correcting the misstatement. Defendant's case was centered on his alleged alibi. The victim testified that her attack ended at about 11 p.m., after which she immediately phoned 911. The transcript of the 911 call indicates on its face that it was recorded beginning at 11:06:50 p.m. A statement at the end of the transcript indicates that the recording stopped at 11:12:15 p.m. However, defendant's clergyman recalled that after he saw defendant washing his wounds in the bathroom, he looked at his watch and the time was 10:50 p.m. Defendant argued to the jury that if the victim's attack ended at 11:06 p.m. he could not be the perpetrator because he was home at 10:50 p.m.

In her closing argument, the prosecutor said that the 911 tape "records the time at the end of the call, after all the lapses and pauses, not at the beginning." While the meaning behind the prosecutor's remark is less than clear, it might imply that the 911 call ended at 11:06 p.m. (and thus started sometime earlier) rather than at 11:12 p.m. In any event, the statement was the apparent impetus behind the jurors' asking during deliberations, "What time did the 911 call begin? [11:]06 hrs/50 secs?" This specific question went unanswered.

The prosecutor's comment is susceptible of more than one interpretation; we hesitate to earmark it a misstatement. However, even assuming the comment is a misstatement, the 911 transcript clearly indicates that the victim's call was received after 11:06 p.m. The 911 transcript was admitted into evidence and was presumably reviewed by the...