State v. Palomo

• Decision Date: 14 December 1989
• Docket Number: No. 56177-0,56177-0
• Citation: 113 Wn.2d 789,783 P.2d 575
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Antonio L. PALOMO, Petitioner.

Page 789

113 Wn.2d 789

783 P.2d 575

STATE of Washington, Respondent, v. Antonio L. PALOMO, Petitioner.

No. 56177-0.

Supreme Court of Washington En Banc.

Dec. 14, 1989.

Washington Appellate Defender Ass'n, Anna-Mari Sarkanen, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, James W. Leslie, Deputy, Seattle, for respondent.

SMITH, Justice.

Petitioner Antonio L. Palomo was convicted of attempted rape in the second degree in a non-jury trial in the Superior Court of Washington for King County before the Honorable Richard M. Ishikawa. ¹ Petitioner claims a violation of his constitutional right to confront witnesses against him. We find there was no violation of his constitutional rights and affirm the Court of Appeals which upheld the conviction.

This case involves application of the "excited utterance" exception to the hearsay rule, now codified under Rule of Evidence (ER) 803(a)(2). Compare Fed.R.Evid. 803(2). The significant question is whether testimony of a witness relating an out-of-court statement by a person not present in court under the "excited utterance" exception requires proof of "unavailability" of the declarant; and, in any case, whether absence of the declarant (who is not subject to cross examination) deprives an accused person of the right to confront witnesses guaranteed by the sixth amendment to the United States Constitution and Const. art. 1, § 22 (amend 10). The simple answer to the question is that the traditional excited utterance exception to the hearsay rule sufficiently meets the test of reliability to overcome the constitutional confrontation objection.

Officer Kenneth Swanson of the Seattle Police Department, while on patrol in downtown Seattle at approximately 11:27 p.m. on November 13, 1986, observed two persons struggling in a doorway. When the officer stopped and approached the scene, he observed a man "kneeling on top of a woman." The woman was lying on her back. The man's pants were unbuttoned, unzipped and fully opened in front. The woman's pants were undone and down around her knees. The man appeared to be pulling at the woman's pantyhose. He had one hand on the woman's waist and the other hand on her pantyhose. The woman was hitting and scratching the man and was screaming for help.

Officer Swanson separated the man and woman and observed what appeared to be fresh scratches on the man's face. He placed the man, later identified as Petitioner Antonio L. Palomo, in handcuffs. The officer testified that the woman was "crying, weeping, very upset." He further testified that " [s]he said he was trying to rape me, get him away from me."

Antonio L. Palomo was charged by information with attempted rape in the second degree. The information named Ms. Elizabeth Serrato as the alleged victim. For some unexplained reason, however, the prosecutor presented a short case with only the testimony of the arresting officer. The officer testified to the alleged victim's statement that the man was trying to rape her. Defense counsel objected to admission of the statement as hearsay. The objection was overruled.

At no time during the State's case was Ms. Serrato identified by name. ² She was not called as a witness, although a subpoena was filed without indication of her address. The testimony depersonalized Ms. Serrato by referring to her only as "victim," "woman," and "she".

The defendant, perhaps for some strategic reason, called Dr. Kevin E. McCarty, an emergency room physician, as his only witness. He testified that at approximately 12:30 a.m. on November 14, 1986, Ms. Elizabeth Serrato came to the Harborview Medical Center for treatment of a lacerated lip and reported that she had been assaulted. He testified that Ms. Serrato complained of pain in her mouth, but that she did not mention an attempted rape or sexual assault. By this testimony the defense conceded that the alleged victim (who before this testimony had not been identified or otherwise named in the State's case) was indeed Ms. Elizabeth Serrato, the person named in the information. Additionally, in a pretrial motion for production of reports of prior claims by the alleged victim, the defense identified the person as Ms. Elizabeth Serrato. The defense then rested and moved to dismiss on several grounds.

One ground for dismissal was that admission of the alleged victim's hearsay statement violated petitioner's right to confrontation under the United States Constitution and the Washington State Constitution because her unavailability had not been established. The State responded that a subpoena had been issued for Ms. Serrato at her last known address, but the State was unable to serve her at that address. Upon examination of the file, the court stated "there was a subpoena issued for Elizabeth Serrato without any address whatsoever. Whether it was served or not, I do not know." The State responded that a separate sheet indicating Ms. Serrato's address was attached to the subpoena but, for her protection, it was not included in the public file. The petitioner does not claim bad faith by the prosecutor in failing to produce the witness.

The trial court denied the motion to dismiss, and convicted Mr. Palomo of attempted rape in the second degree as charged.

The Court of Appeals, Division One, in an unpublished opinion, held that admission of the out-of-court hearsay statement without showing a good faith effort to produce the witness violated petitioner's right to confrontation. However, the court concluded that the error was harmless under the "overwhelming untainted evidence" test and affirmed the conviction, citing State v. Guloy, 104 Wash.2d 412, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). This court granted review. State v. Palomo, 113 Wash.2d 1001, 777 P.2d 1051 (1989).

The issues presented in this case are:

1. Whether the trial court properly admitted the out-of-court statement of an absent witness under the "excited utterance" exception to the hearsay rule;

2. Whether admission of the statement under the "excited utterance" exception violates the constitutional confrontation clause; and

3. Whether admission of the statement would be harmless error, even if it were admitted in violation of the confrontation clause.

The trial court admitted the police officer's testimony which recited the alleged victim's statement under the "excited utterance" exception to the hearsay rule. The exception states that the hearsay rule does not exclude "[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" even though the declarant is available as a witness. ER 803(a)(2); accord Fed.R.Evid. 803(2). See State v. Flett, 40 Wash.App. 277, 286-87, 699 P.2d 774 (1985); 5B K. Tegland, Wash.Prac., Evidence § 361, at 156 (3d ed.1989).

The alleged victim made the statement immediately after the officer pulled Petitioner Palomo off her. At that point, she was crying and still upset. Petitioner does not contest the trial court's characterization of the statement as an excited utterance. The statement was properly admitted under the recognized exception to the hearsay rule.

Even though properly admitted under an exception to the hearsay rule, the statement must also meet overriding constitutional confrontation clause concerns. State v. Guloy, 104 Wash.2d 412, 424, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986) (citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ).

The Washington Constitution provides that "[i]n criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face". Const. art. 1, § 22 (amend. 10). Similarly, the sixth amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him". The Sixth Amendment applies to state courts through the Fourteenth Amendment. E.g., Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

Petitioner claims violations under both provisions, but does not argue that the state constitution affords broader protection than the federal constitution. Although the language of Const. art. 1, § 22 (amend. 10) is different from that of the Sixth Amendment and arguably gives broader protection than the Sixth Amendment language, our courts have not so interpreted it. See, e.g., State v. Hieb, 107 Wash.2d 97, 727 P.2d 239 (1986); State v. Robinson, 44 Wash.App. 611, 617 n. 2, 722 P.2d 1379, review denied, 107 Wash.2d 1009 (1986). This court will not consider the issue where it has neither been timely nor sufficiently argued by the parties as is the case here. See State v. Jones, 112 Wash.2d 488, 498-99, 772 P.2d 496 (1989); State v. Wethered, 110 Wash.2d 466, 472-73, 755 P.2d 797 (1988).

Division One of the Court of Appeals and petitioner both relied on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1979), for the broad proposition that the confrontation clause bars admissibility of hearsay statements unless unavailability of the declarant is shown. ³

However, Roberts considered an Ohio statute that required a showing of unavailability for admission of prior testimony. ⁴ In the present case, the statement of Ms. Serrato was admitted under the excited utterance exception to the hearsay rule which does not require unavailability of the declarant. ER 803(a)(2); accord, Fed.R.Evid. 803(2).

Furthermore, United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), limited the Roberts requirement of unavailability to cases involving prior testimony. Inadi, 475 U.S. at 393, 106 S.Ct. at 1125. See Fed.R.Evid. 804; compare ER 804. Ohio v. Roberts, supra, is not authority for requiring a showing of unavailability for admission of an excited utterance. ⁵

Neither the United States...