State v. Dixon
| Decision Date | 07 November 1967 |
| Citation | 37 Wn.App. 867,684 P.2d 725 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Michael L. DIXON, b.d |
Rosemary Bordlemay, Seattle (court-appointed), for appellant.
Norman K. Maleng, King County Pros. Atty., Barbara Corey-Boulet, Deputy Pros. Atty., Seattle, for respondent.
Michael L. Dixon appeals his juvenile court conviction for indecent liberties, alleging the trial court erred in admitting the victim's written statement, in permitting an 8-year-old child to testify without administering an oath or affirmation, and in permitting the victim's sister to testify on rebuttal after she had remained in the courtroom despite a ruling excluding all witnesses.
At approximately 6:30 p.m. on September 14, 1982, Dixon went to the residence of Ms. M. and asked her to accompany him to a nearby gymnasium to play basketball. Ms. M. agreed to meet him after she changed her clothes. Dixon asked for a drink of water and was admitted to Ms. M.'s apartment for that purpose. He was to wait in the living room while she changed clothes in her bedroom. Dixon entered the bedroom while Ms. M. was changing her clothing and asked her to allow him to put handcuffs on her. Ms. M. refused, and a physical struggle ensued, during which Dixon pushed Ms. M. onto her bed and, while holding her face-down on the bed, implored her to have sexual intercourse with him. She refused, but Dixon persisted. Dixon placed his hand under her shirt, felt her breast, and put his hand beneath her underwear. Ms. M. became frightened and screamed. Dixon threatened to hurt her if she told anyone about the episode.
During the struggle, Ms. M. received two telephone calls. Dixon refused to allow her to answer the first call. He did allow her to answer the second call, but warned her not to disclose his presence to the caller. Instead, Ms. M. took the phone and screamed for help. Dixon knocked the phone from her hand and she ran from her apartment screaming. Ms. M.'s screams were overheard by a neighbor, who called the police. Dixon ran from the apartment before the police arrived.
Seattle police officers Hamlin and Lane arrived at the scene at approximately 7:40 p.m. They remained at the scene for more than 2 hours. During the entire 2 hours, Ms. M. was "quite upset and distraught." The officers described Ms. M. as being somewhat hysterical, in tears and having a hard time breathing when they arrived. She spoke to the officers, saying, "He tried to kill me, he tried to kill me." Over a period of approximately 2 hours, the police officers made efforts to get Ms. M. to calm down and at the same time took from her a written statement containing the details of the attack. The time indicated on the written statement is 8:10 p.m.
When Officer Lane started to testify during direct examination as a witness for the State as to what Ms. M. had reported to her, Dixon's counsel objected on the ground that if the officer recited Ms. M.'s statements to her, this would not be a verbatim statement by Ms. M. but would be a summary set forth in the wording of the witness. Officer Lane then testified that she took a written statement over a period of about 2 hours, during which time Ms. M. continued to be upset. At this point, Dixon's counsel objected very generally, asserting that what Ms. M. said should come in through her testimony and not through a written statement. The trial judge responded that it was simply a question of whether the written statement qualified as an excited utterance and that if it did, it did not make any difference whether Ms. M.'s testimony came in through live testimony or through a written statement. The trial judge suggested that the proper form was to have the statement marked as an exhibit. The court agreed that the contents of the statement would not be read into the record until after cross examination of the officer had been completed. Dixon's counsel requested a continuing objection to the whole statement, but did not specify the basis of the objection. Although defense counsel's objections did not relate directly to whether the statement was qualified as an excited utterance, the trial judge made it clear he was admitting the statement as an excited utterance.
Dixon testified in his own defense. During his testimony, he stated that he had not visited Ms. M.'s apartment on the day before the alleged incident. After Dixon rested, the State called Ms. M.'s sister as a rebuttal witness. Dixon objected to her testimony on the ground that she had been in the courtroom during the trial despite the court's ruling that all witnesses should be excluded from the courtroom until after they had given their testimony. The trial judge overruled the objection on the sole ground that the sister was being offered as a rebuttal witness. Ms. M.'s sister then testified that she knew Dixon and that Dixon had come to their apartment on the day before the events involved in the case. This testimony was offered to rebut the testimony of Dixon to the contrary.
Breckeen Anderson was called as a witness for the State. Breckeen was 8 years of age. The trial judge directed him to be seated in the witness chair and directed counsel for the State to proceed. The deputy prosecuting attorney suggested that the witness should be sworn, and the court announced that it was not necessary to swear in witnesses "of this age". The deputy prosecuting attorney then asked Breckeen a series of questions to demonstrate that he knew the difference between the truth and a lie and that it was important to tell the truth. She obtained an affirmation from him that his testimony would be the truth. The court interrupted to ask Dixon's counsel if he had any questions relating to the qualifications of the witness, his ability to perceive facts or his ability to tell the truth. Counsel stated he had no objection to the qualifications of the witness. Indeed, he stated no objection at any time.
As his first assignment of error, Dixon asserts that admission of the 4-page statement given by Ms. M. to Officer Lane, taken and reduced to writing over a period of approximately 2 hours commencing at approximately 8:10 p.m. on the date of the offense, was error because the statement was hearsay and did not meet the requirements of the excited utterance exception to the hearsay rule. ER 803 describes specific exceptions to the rule excluding hearsay and ER 803(a)(2) describes an excited utterance as
[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.
ER 803(a)(2) is a less restrictive rule than the rule stated in Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939).
(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, supra at 9-10, 92 P.2d 1113.
An excited utterance is made an exception to the rule excluding hearsay on the theory that the declarant, being under the stress of excitement caused by the startling event, is much less likely to consciously fabricate. The stressful circumstances are believed to operate to temporarily overcome the ability to reflect and consciously fabricate. The reliability and probable truthfulness of excited utterances distinguish them from ordinary hearsay. State v. Whyde, 30 Wash.App. 162, 632 P.2d 913 (1981); United States v. Knife, 592 F.2d 472 (8th Cir.1979); Annot., 48 A.L.R.Fed. 451 (1980); 5A K. Tegland, Wash.Prac. § 361 (1982); E. Cleary, McCormick on Evidence § 297 (2d ed. 1972); 6 J. Wigmore, Evidence § 1749 (Chadbourn rev. ed. 1976), where the author states:
This circumstantial guarantee here consists in the consideration, already noted (§ 1747 supra ), that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief. The utterance, it is commonly said, must be "spontaneous," "natural," "impulsive," "instinctive," "generated by an excited feeling which extends without let or breakdown from the moment of the event they illustrate."
Beck v. Dye, supra referred to this exception as the res gestae rule. Wigmore refers to it as "spontaneous exclamations". ER 803(a)(2) describes it as an "excited utterance". The different terms refer to the same basic rule. Although ER 803(a)(2) is not as restrictive as the requirements of the common law exception, nevertheless, ER 803(a)(2) should be interpreted in a sufficiently restrictive manner as not to lose sight of the basic elements which distinguish excited utterances from other hearsay statements. This is necessary in order to preserve the real purpose of the exception and prevent its application where the factors guaranteeing trustworthiness are not present.
Pre-rule as well as post-rule cases emphasize the requirement of spontaneity. Robbins v. Greene, 43 Wash.2d 315, 321, 261 P.2d 83 (1953); State v. Woodward, 32 Wash.App. 204, 206, 646 P.2d 135 (1982); State...
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