State v. Harper

• Decision Date: 06 February 2009
• Docket Number: No. 07-0449.,07-0449.
• Citation: 770 N.W.2d 316
• Parties: STATE of Iowa, Appellee, v. Sessions Lamont HARPER, Appellant.
• Court: Iowa Supreme Court

770 N.W.2d 316

STATE of Iowa, Appellee, v. Sessions Lamont HARPER, Appellant.

No. 07-0449.

Supreme Court of Iowa.

February 6, 2009.

Rehearing Denied March 3, 2009.

Thomas J. Miller, Attorney General, Kevin Cmelik and Scott Brown, Assistant Attorneys General, and Timothy N. Schott, County Attorney, for appellee.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.

STREIT, Justice.

A badly-burned woman was brought to the emergency room. When the attending doctor asked what had happened, she responded, "Sessions Harper raped me, tied me, and set my house on fire." Holly Michael died eighteen days later from the burns. At trial, Harper objected to Michael's statements, claiming their admission violated his right to confrontation as guaranteed by the Sixth Amendment. The district court determined the statements were admissible under the forfeiture-by-wrongdoing exception to the Confrontation Clause. Because Michael's statements were nontestimonial, the Confrontation Clause does not exclude them. We affirm Harper's convictions.

I. Background Facts and Prior Proceedings.

On the evening of January 7, 2006, Holly Michael, Ashleigh Attig, Becky Sittig, and Sessions Harper hung out at Michael's house in Fort Dodge drinking, smoking marijuana, and using cocaine. Shortly after midnight, they all went to a local bar for about an hour, where they all drank more. The four returned to Michael's house around 1:45 a.m. Sometime during the party, Harper and Attig, the mother of Harper's child, had sex in Michael's bedroom. Harper, Sittig, and Attig left Michael's house around 4:30 a.m. Between 4:38 and 6:35, Harper made eight calls from his cell phone to Michael's residence.

Later that morning, several neighbors noticed a red car with a colored lei hanging from the rearview mirror parked near Michael's home. At 9:30, one of the neighbors saw an African-American male seated in the car. Shortly thereafter, a couple driving past Michael's home noticed it was on fire and called the fire department.

When the fire department arrived, a fireman found Michael in the basement, laying face down, hands and feet bound, and wrapped in a burning comforter. Even after firemen and paramedics removed the comforter, material attached to Michael's body was still on fire. In the ambulance, en route to the hospital, Michael insisted she wanted to die. The paramedic poured saline on Michael to put out the smoldering material attached to her body. Her hands and arms were severely burned, and the fingers on her left hand were charred off.

When Michael arrived in the emergency room, an x-ray technician heard Holly say, "please don't kill me" and "Harper did it, Harper did it." One of the treating physicians initially thought Michael was dead based on the severity of her burns. After he discovered she was alive and conscious, he asked her what had happened. She said that Sessions Harper had raped her, tied her, and set her house on fire. The doctor asked her to repeat what she had said, and Michael again said that Sessions Harper had raped her, tied her, and set her house on fire. Another physician treating Michael also heard what she had said. Based upon Michael's statements, a doctor performed a rape kit examination. Another attending physician treating Michael asked her who had done this, and Michael replied "Sessions Harper. He tied me up, raped me, and left me in the basement." Due to the severity of her burns, Michael was airlifted to Iowa City.

Michael's mother reported that Michael mouthed the word "Sessions" over and over again from her hospital bed. Sixty percent of her body had third- and fourth-degree burns, some to the bone. Her arms had to be amputated. Eighteen days after the incident, Michael died from complications from the burns and inhalation injuries.

An investigation revealed that separate fires had been intentionally started in Michael's house and the fire alarms had been disabled. Michael's jeans and a condom containing Harper's DNA on the inside and Michael's DNA on the outside were found in Michael's bedroom, and a pair of sunglasses bearing Harper's fingerprint and blood was found in the basement. Tests showed a mixture of gasoline and petroleum product had been poured on Michael.

Harper was arrested and charged with first-degree sexual abuse, kidnapping, murder, and arson. Harper filed a motion in limine requesting Michael's statements to medical personnel at the hospital be excluded on the grounds the statements were hearsay and violated Harper's right of confrontation. The district court entered an order allowing the State to use Michael's statements at trial. At trial, Harper was found guilty of all charges and sentenced to three life sentences and one sentence of twenty-five years. Harper appeals, claiming Michael's statements were hearsay and violated the Confrontation Clause and ineffective assistance of counsel for failing to object to an unnecessarily suggestive car identification.

II. Scope of Review.

We review claims involving the Confrontation Clause de novo. State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007). We review hearsay claims for errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). However, hearsay must be excluded "unless admitted as an exception or exclusion under the hearsay rule or some other provision." State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003). "This means a district court has no discretion to deny the admission of hearsay if the statement falls within an enumerated exception. ..." Id. Thus, "[w]e will reverse the trial court's ruling only when there has been an abuse of its discretion in ruling on the circumstances triggering this exception." Bratton v. Bond, 408 N.W.2d 39, 44 (Iowa 1987).

III. Merits.

A. Hearsay exceptions. Michael's statements that Sessions Harper raped her, tied her, and burned her house are hearsay and therefore are not admissible unless they qualify under an exception. Iowa R. Evid. 5.802. 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." Iowa R. Evid. 5.801(c). Michael's statements to hospital staff are admissible under two exceptions to the hearsay rule, excited utterance and dying declaration. Iowa Rs. Evid. 5.803(2), 5.804(b)(2).

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." Iowa R. Evid. 5.803(2). "The rationale behind the exception is that statements made under the stress of excitement are less likely to involve deception than if made upon reflection or deliberation." State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004). In determining whether a statement qualifies as an excited utterance, the trial court should consider

(1) the time lapse between the event and the statement, (2) the extent to which questioning elicited the statements that otherwise would not have been volunteered, (3) the age and condition of the declarant, (4) the characteristics of the event being described, and (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999).

The circumstances surrounding Michael's statements support the district court's finding the statements are excited utterances. The time lapse between when Michael was rescued from the basement to when she made the statements to hospital staff was not long. In the interim, Michael was being treated for her burns and was still suffering from the "startling event." Although Michael's statement that Sessions Harper raped her, tied her, and set her house on fire was in response to a question, the fact that a statement was prompted by a question does not automatically disqualify it as an excited utterance. For example, in State v. Stafford, 237 Iowa 780, 23 N.W.2d 832 (1946), a woman was badly beaten by her husband in the evening. She escaped and wandered in the darkness all night until she arrived at her sister's house the next morning. Stafford, 237 Iowa at 784, 23 N.W.2d at 835. Not recognizing her, the sister asked the badly-beaten woman what had happened. Id. The woman identified herself and said that her husband had almost beaten her to death. Id. Determining the statement was an excited utterance, the court explained, "[t]o declare what had taken place, how she came to be injured and where, while lacking the element of contemporaneous connection, yet will stand the test of spontaneity, and a natural expression of what had happened to her." Id. at 787, 23 N.W.2d at 836; see also Atwood, 602 N.W.2d at 782-83 (statement in response to the question "what happened?" determined to be an excited utterance).

Further, Michael did make other statements spontaneously that implicated Harper. One of the hospital workers heard Michael say, "Please don't kill me. Harper did it, Harper did it." Under the circumstances, Michael's statements describing what happened and identifying her perpetrator were not reflective or deliberative, but rather made under the stress of her situation. Tejeda, 677 N.W.2d at 753. Michael's condition (suffering from severe burns) and the brutality of the event described point in favor of the statement being an excited utterance. When she uttered the statements concerning her present condition, her skin was still smoldering and the pain of the event was still continuing.

In addition, Michael's statements are admissible under the dying declaration exception. Iowa R. Evid. 5.804(b)(2). A dying declaration is "[a] statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death." Id. In order for a statement to be admissible under this exception, it must be clear from the circumstances that the declarant's "sense of impending...