State v. Mickelson

• Decision Date: 31 December 1992
• Docket Number: No. 910455-CA,910455-CA
• Citation: 848 P.2d 677
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gordon Dee MICKELSON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 677

848 P.2d 677

STATE of Utah, Plaintiff and Appellee, v. Gordon Dee MICKELSON, Defendant and Appellant.

No. 910455-CA.

Court of Appeals of Utah.

Dec. 31, 1992.

Lisa J. Remal and Elizabeth Holbrook (argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., and Kris C. Leonard (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before GARFF, JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Appellant assails his conviction for forcible sexual abuse, a second degree felony in violation of Utah Code Ann. § 76-5-404 (1990), on two grounds. First, he claims the trial court improperly characterized statements made by the victim as "excited utterances," admissible under Utah Rule of Evidence 803(2). Second, he challenges the trial court's refusal to order the prosecution to disclose to the defense any criminal records of witnesses the State planned to call at trial, absent a good cause showing that particular witnesses may have had criminal histories. ¹ We affirm in part, reverse in part, and remand with instructions.

BACKGROUND

Except as otherwise noted, we recite the facts in the light most favorable to the jury's verdict. See, e.g., Crookston v. Fire Ins. Exch., 817 P.2d 789, 794 (Utah 1991).

On the morning of November 6, 1990, appellant Gordon Dee Mickelson was working as an orderly at South Valley Care Center in Jordan, Utah, under the supervision of Kristi Schugk, a nurse's aid. Sometime between 2:00 and 3:00 a.m., Schugk reported to the room of a seventy-two year old resident, who will be referred to as W.M. W.M., who suffered from senile dementia, organic brain disease, hypertensive cardiovascular disease, incontinence, and a history of strokes and chronic urinary tract infections, was unable to walk or care for herself, and requested Schugk's assistance in going to the bathroom. Schugk enlisted appellant's aid, and the two assisted W.M. from her bed to the bathroom and back. As Schugk and appellant were returning W.M. to her bed, a patient in the next room signaled for assistance. Schugk left appellant to finish with W.M. while she went to answer the call.

Dewey Cannon, the Center's maintenance supervisor, was applying new wax to the hallway floor outside W.M.'s room when Schugk and appellant entered the room and assisted W.M. to the bathroom. Cannon suspended his work while Schugk and appellant were inside the room, and waited outside the open door for them to leave before continuing. Cannon testified at trial that he delayed application of the new wax until Schugk and Mickelson left W.M.'s room because of the danger that, if the two stepped from W.M.'s room onto a slick, newly waxed floor, they might slip and fall. When Schugk left W.M.'s room to respond to the second assistance call, Cannon continued to wait for appellant to exit. When appellant did not exit, Cannon looked into the room through the open doorway.

Cannon testified at trial that, upon looking in W.M.'s room, he observed W.M. lying on her back in bed, her nightgown pulled up around her waist, and appellant standing beside the bed fondling her exposed genitalia with one hand. Cannon stated that, after observing this activity for several minutes, he rushed into the room and yelled at appellant, at which time appellant pulled the bed covers over W.M. and left the room. ²

At approximately 5:00 that same morning, two to three hours after the molestation occurred, Schugk entered W.M.'s room to wake and dress her. Schugk found W.M. in an emotionally distraught state, and asked W.M. what was wrong. W.M. responded: "That man was mean to me." Schugk asked W.M. which man she meant, and W.M. said, "The man that was with you, the dark-haired man." Appellant was the only dark-haired man who had accompanied Schugk into W.M.'s room that morning. Schugk attempted to garner more information from W.M. concerning the cause of her anxiety, but was unable to calm W.M. enough to do so.

At 7:00 a.m., another nurse at the Center, Juanita Nutt, entered W.M.'s room to take her to the dining room for breakfast. At that time W.M., who was still visibly upset, told Nutt she did not want to go. Nutt asked W.M. why, and W.M. responded, "I am hurt." Nutt was unable to extract any other information from W.M. concerning the nature or cause of her "hurt."

COURSE OF PROCEEDINGS

Appellant was tried on the charge of forcible sexual abuse. Prior to trial, appellant moved that the State prepare and produce to the defense "a list of prior criminal convictions of witnesses the State intends to call." The motion did not identify any particular witnesses for whom criminal records were requested, or explain why the records were sought. Thus, it clearly was not an attempt to gain possession of specific records the defense already knew to exist. Rather, it constituted a bid by the defense to discover which, if any, of the State's witnesses had prior criminal convictions which could be used for impeachment purposes. ³

The prosecution objected to the motion on the ground that, under Utah Rule of Criminal Procedure 16(a)(5), appellant was obligated to demonstrate a "good cause" basis for believing that a particular witness may have had a criminal history before being granted access to that witness's record. Since the defense's motion failed to make this showing with regard to any of the State's witnesses, the prosecution asserted, appellant's motion was no more than a "fishing expedition" and should be denied.

The trial court agreed with the prosecution, and suggested that appellant supplement the motion by identifying with particularity those witnesses for whom conviction records were sought, and setting forth a statement for each identified witness establishing good cause why the defense believed that witness might have a criminal history. The court stated it would grant appellant's motion, and order the prosecution to disclose the requested records, with respect to any witnesses for whom this supplementary information was provided. Appellant failed to supplement its motion with regard to any of the witnesses, however, and was thus denied access to any of the requested criminal records which might exist.

At trial, Schugk and Nutt testified as to the statements W.M. made to them on the morning of November 6, 1990, concerning W.M.'s being "hurt" and her perception that a dark-haired man had been mean to her. Defense counsel objected to the testimony on the ground that, since W.M.'s statements had been made out of court, Schugk and Nutt's testimony constituted inadmissible hearsay. The trial court, however, rejected the defense's position, and held that the statements were admissible as "excited utterances" under Utah Rule of Evidence 803(2).

Appellant was convicted of forcible sexual abuse and sentenced to one to fifteen years in prison, fined $10,000, and ordered to pay restitution in an undetermined amount. Appellant now challenges his conviction, claiming the trial court erred in (1) determining W.M.'s out-of-court statements to be admissible as excited utterances, and (2) requiring defendant to make a showing that particular witnesses may have had criminal histories as a prerequisite to ordering disclosure of the conviction records of the State's witnesses.

ADMISSIBILITY OF W.M.'S STATEMENTS

Hearsay statements are generally excluded as evidence on the ground that, since the statements are not made under oath, and often only the witness to the declaration--not the declarant--is available for cross-examination at trial, the statements are generally unreliable. Utah R.Evid. 802; State v. Cude, 784 P.2d 1197, 1199 (Utah 1989). However, Utah Rule of Evidence 803(2) exempts from Rule 802's prohibition "statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," regardless of whether the declarant is available to testify at trial. ⁴ Such statements, called "excited utterances," are admissible on the ground that, since they are made at a time when the declarant is under the influence of a startling event and therefore unlikely to have the wherewithal to fabricate falsehoods, "the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous." Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). See Edward W. Cleary, McCormick on Evidence, § 297 at 855 (3d ed. 1984).

The Utah Supreme Court has recognized a three-pronged test for determining whether a statement is admissible under Rule 803(2). According to this test, a statement constitutes an excited utterance only when (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. Cude, 784 P.2d at 1200. See also State v. Barber, 747 P.2d 436, 438 (Utah App.1987). Absent one or more of these criteria, the statement may not be admitted as an excited utterance.

I. Occurrence of Startling Event

Appellant first argues the trial court erred in finding appellant's conduct toward W.M. satisfied the first prong of Cude--that a startling event or condition had occurred. He claims that since, at the time W.M.'s statements were admitted at trial, it was unresolved whether W.M. had been sexually abused, the trial court could not have properly determined that W.M. had suffered the predicate "startling event," to which her statements supposedly relate. Appellant asserts that the court erred in admitting W.M.'s hearsay statements to establish the occurrence of the very event which supposedly prompted the statements.

The admissibility of evidence is a question of law. State v. Ramirez, 817 P.2d 774, 781 n. 3 (Utah 1991). Accordingly, we generally grant no deference to a trial...