State v. Harris

• Decision Date: 05 May 2000
• Docket Number: No. 26733.,26733.
• Citation: 531 S.E.2d 340,207 W.Va. 275
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia Plaintiff below, Appellee, v. Henry HARRIS, Defendant below, Appellant.

531 S.E.2d 340

207 W.Va. 275

STATE of West Virginia Plaintiff below, Appellee, v. Henry HARRIS, Defendant below, Appellant.

No. 26733.

Supreme Court of Appeals of West Virginia.

Submitted March 22, 2000.

Decided May 5, 2000.

Dissenting Opinion of Justice Davis, May 23, 2000.

William Ihlenfeld, II, Esq., Robert G. McCoid, Esq., Assistant Prosecuting Attorneys, Wheeling, West Virginia, Attorneys for Appellee.

Heather A. Wood, Esq., Public Defender Corp., Wheeling, West Virginia, Attorney for Appellant.

STARCHER, Justice:

I.

Introduction

Henry Harris was convicted of domestic battery¹ on May 3, 1999, after a bench trial² before Judge Arthur Recht of the Circuit Court of Ohio County. Specifically, Mr. Harris was charged with beating up his girlfriend, to whom we will refer as Ms. M.

Judge Recht concluded that the evidence at trial showed beyond a reasonable doubt that Mr. Harris had indeed beaten Ms. M.— and, therefore, Mr. Harris was guilty of domestic battery. The judge sentenced Mr. Harris to 1 year in jail.

In this appeal, Mr. Harris says that his conviction and sentence should be reversed and set aside, and that he should be entitled to a new trial. Mr. Harris argues that he did not receive a fair trial because the judge improperly based his decision on hearsay evidence.³

II.

Discussion

A.

Statement of Ms. M.

In this case there was evidence introduced into the trial that Mr. Harris claims was improper hearsay. The evidence to which the defendant objects came from the police officers who arrested Mr. Harris. These officers testified that Ms. M. told them, at the residence where the police first encountered her, and later at a hospital where she was being treated, that Mr. Harris had beaten her several times on the night when he was arrested. The police testimony that Mr. Harris complains about, in summary, was: "She told us that Mr. Harris had beaten her."

Was the police testimony about what Ms. M. said to them hearsay? Using the two-part test that we describe at footnote 3, we first see that the police testified about statements that were not made in court—Ms. M. made her statements about Mr. Harris just after Mr. Harris was arrested, and a short time later at the hospital.

Second, we see that Ms. M.'s statements were presented as evidence to prove that Mr. Harris in fact beat Ms. M.—in other words, to prove the truth of the statements. So, Ms. M.'s statements that the police repeated to the court were indeed hearsay.

The question naturally arises as to why the prosecutor chose to use hearsay evidence, to prove that Mr. Harris beat Ms. M. Why didn't the prosecutor just call Ms. M. as a witness? Then her statement would not be hearsay. Moreover, if Ms. M. testified in court, there would not be the possibility that the police misheard her. And if she testified, Mr. Harris's lawyer could try to pick her testimony apart, and perhaps show that she was making things up or exaggerating. Both to make the prosecution's case stronger, and to make the trial more fair for Mr. Harris, direct evidence from Ms. M. would have been more desirable.

So why did the prosecution present the hearsay evidence from the police?⁴ The answer is that Ms. M. did not testify. The prosecution tried more than six times to serve a subpoena on Ms. M., but could not do so. She was unable or unwilling to come to court to repeat what the police said she told them right after the alleged crime.

We do not know why the prosecution couldn't find Ms. M. to subpoena her. And even if they had subpoenaed her, we don't know if she would have shown up at trial— and if she had shown up, we don't know what she would have said about the night that the alleged crime occurred. While we do not specifically know why Ms. M. wasn't in court at Mr. Harris's trial, we do know that in domestic violence cases it is common for the alleged victim not to "press charges" against the person who is accused or suspected of committing the domestic violence.

This legal opinion is not the place to write an essay on domestic violence. We are addressing an issue of evidence—did Mr. Harris lose his right to a fair trial because the judge relied on hearsay evidence? But we do recognize in making our decision that domestic violence cases frequently present hearsay issues. The alleged victim commonly makes an initial statement to police in which the victim says that a certain person beat them—but then later, the alleged victim often will not repeat that statement in court. Perhaps the alleged victim has or hopes to be reconciled with the person who is charged, perhaps they are fearful, perhaps they exaggerated or even lied in their initial statement. But whatever the reason, in domestic violence cases, the criminal legal system is often presented with the fact that hearsay evidence may be the only evidence there is.

The unavailability of an alleged victim or other witness to testify in a criminal case can happen in many different circumstances, not just domestic violence cases. People move, they become sick or die, or they make themselves scarce. Sometimes victims or witnesses who are physically available to testify will no longer testify to things they said earlier. People change their recollections, they forget what happened, or they just "clam up."

Because there are often circumstances where people cannot or will not come into court to testify, our legal system has evolved a number of rules that describe when we will permit hearsay evidence of what a person said out of court to be presented as evidence in a court.

Where did we get these always-evolving "rules of evidence" that allow hearsay evidence in some cases? These rules evolved from individual cases, where trial court judges either let in some hearsay evidence— or kept it out—because it seemed to be fair and necessary or not fair and unnecessary under the circumstances. Then a party who objected to the trial judge's ruling on hearsay evidence appealed. And then an appeals court (like ours) looked at what the trial judge did, and approved or disapproved of the trial judge's ruling, and wrote down their reasons in a legal opinion like this one.

Other appeals courts, facing similar issues of hearsay evidence, would read these opinions in law books—as would the law professors and scholars who write books based on court opinions. Over hundreds of years, commonly accepted (but always evolving) rules have emerged from these cases and books, rules that give courts guidance as to when a court may allow hearsay evidence to be the basis for a court decision.

One of these rules, in the area of hearsay evidence, has come to be called in West Virginia the "excited utterance" rule. In our West Virginia Rules of Evidence, Rule 803(2) says that the following is "not excluded by the hearsay rule:"

[a] statement relating to a startling event or condition made while the declarant [the person making the statement] was under the stress of excitement caused by the event or condition.

This Court set forth its most recent discussion of this rule in the case of State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995). In Sutphin we said:

In order to qualify as an excited utterance under W.Va.R.Evid. 803(2): (1) the declarant must have experienced a startling event or condition; (2) the declarant must have reacted while under the stress or excitement of that event and not from reflection and fabrication; and (3) the statement must relate to the startling event or condition.

Syllabus Point 7, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402(1995).

In applying this rule to Mr. Harris's appeal, the question that this Court must decide is: was Judge Recht correct in concluding that the statements that the police testified that Ms. M. made qualified as "excited utterances?" If Ms. M.'s statements were "excited utterances," then it was permissible for the judge to allow the statements into evidence, and to base his decision on the statements—even though the statements were hearsay.

To make this decision, we must look at what evidence the judge had about when and how the statements were made. We must ask: did this evidence, if the judge believed it, allow the judge to conclude that Ms. M.'s statements, that Mr. Harris beat her, were excited utterances?

The testimony before the judge was that Ms. M. had a broken nose, profuse bleeding from the nose, and an eye that was swollen shut. The photographs of Ms. M. strongly suggested that she had received a severe beating. There is no doubt that such a beating and such injuries are a "startling event."

Officer Schultz testified that he arrived at the scene of the alleged beating "within two minutes" of having received notification from dispatch. He testified that "less than ten minutes" had elapsed between the time that he had arrived at the scene and the time he encountered Ms. M. Upon encountering her, he noted that she was "upset [and] crying," that she was "bleeding from the nose quite heavily," and that the blood that he observed about her was "fresh." Officer LaCava similarly testified that, upon encountering Ms. M., he observed that she was "bleeding from the nose and mouth area." Significantly, Schultz testified that Ms. M.'s eye was noticeably swelling shut in his presence. Ms. M.'s statements to the police at her residence were clearly made while she continued to experience excitement over the startling event.

With respect to Ms. M.'s statement at the hospital emergency room, reaffirming her statements made to the officers while at her residence, Officer Schultz testified that his hospital interview of Ms. M. occurred less than 30 minutes from the time that he left her at her residence, and that she was still "very upset and crying" during the interview. These statements also clearly qualified as excited utterances.

We conclude that the circuit court judge did not make a legal error in applying the "excited utterance" rule to the statements of Ms. M. The judge was on...