State v. Rivera

• Decision Date: 16 February 1984
• Docket Number: No. 5953-PR,5953-PR
• Citation: 139 Ariz. 409,678 P.2d 1373
• Parties: STATE of Arizona, Appellee/Cross Appellant, v. Margarito Morales RIVERA, Appellant/Cross Appellee.
• Court: Arizona Supreme Court

Page 1373

678 P.2d 1373

139 Ariz. 409

STATE of Arizona, Appellee/Cross Appellant, v. Margarito Morales RIVERA, Appellant/Cross Appellee.

No. 5953-PR.

Supreme Court of Arizona, In Banc.

Feb. 16, 1984.

Reconsideration Denied Apr. 3, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee/cross-appellant.

Frederic J. Dardis, Pima County Public Defender by Frank P. Leto, Deputy Public Defender, Tucson, for appellant/cross appellee.

FELDMAN, Justice.

Margarito Morales Rivera (appellant) petitions for review of his conviction of a violation of A.R.S. § 13-1410 (child molestation). We granted review to consider the admissibility of a statement by the 3 year old victim, accusing her grandfather (appellant) of having fondled her. The statement was admitted under the hearsay exception for excited or spontaneous utterances. We have jurisdiction under A.R.S. § 12-120.24 and Rule 31.19, Rules of Criminal Procedure, 17 A.R.S.

The facts relevant to the dispositive issue follow:

On August 17, 1981, appellant spent the night in a Tucson motel with his son, his daughter-in-law, and their two daughters, Priscilla, age 5, and Vicky, age 3. Sometime during the night of August 17 or the early morning hours of August 18, appellant allegedly went to the two girls, who were sleeping on the floor, and touched the 3 year old in the "crotch" area. Priscilla was the only witness to this, and she testified later that Vicky's response to the "touching" was to laugh. The parents were not awakened by the incident. Appellant and his son got up the morning of the 18th at 4:30 a.m. Appellant took his son to work around 5:00 a.m., and returned to the motel later in the day.

During the morning of the 18th, the mother received a telephone call from appellant's ex-wife. During that call, which occurred between 10:30 and noon, appellant's ex-wife mentioned that in the past appellant had molested her daughter. Immediately after this call, the mother came into the motel room where Priscilla and Vicky were playing and asked Priscilla whether anybody had ever touched her. Priscilla said no, but Vicky stated: "My Tata touched me right here" (indicating her pubic area). Priscilla then said she had seen her grandfather touch Vicky.

The mother brought the two girls to the hospital later that evening. An examination revealed swelling around the outside of Vicky's vagina and surrounding tissues. The vaginal area did not appear normal for a 3 year old, and was consistent with partial penetration. (It was also consistent with an injury sustained by a fall or through vigorous rubbing.) An examination of Priscilla's vaginal area revealed the same indications of trauma.

At hearings before trial, Vicky was found to be incompetent as a witness, but Priscilla was determined competent to testify. The case was tried before a jury; Priscilla and her mother testified. The trial court admitted Vicky's statement to her mother over defendant's hearsay objection. The jury found appellant guilty of child molestation. The court of appeals affirmed by memorandum decision. We deal today only with the ruling on the admissibility of Vicky's statement to her mother. This was admitted as an excited utterance and affirmed by the court of appeals on the authority of State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971).

Standard of Review

Appellate courts will not reverse the trial court's ruling under the excited utterance exception to the hearsay rule absent a clear abuse of discretion, State v. Dale, 113 Ariz. 212, 216, 550 P.2d 83, 87 (1976). State v. Hughes, 120 Ariz. 120, 123, 584 P.2d 584, 587 (App.1978). The modern trend is toward a liberal interpretation of this exception, leaving admissibility largely to the discretion of the court. State v. Woolery, 93 Ariz. 76, 84 n. 5, 378 P.2d 751, 757 n. 5 (1963).

The Excited Or Spontaneous Utterance Exception To The Hearsay Rule

Hearsay is defined as 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." Rule 801(c), Ariz. Rules of Evidence, 17A A.R.S. The excited or spontaneous utterance exception to the hearsay rules defines such a statement as one "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Rule 803(2), Ariz.Rules of Evidence. The exception is premised on the assumption that the excitement of certain startling events stills the reflective faculties. A spontaneous utterance occurring at the time of or under the stress of the "startling event" is therefore thought to be reliable because it is likely to be a "natural" response to the actual sensations and perceptions produced by the preceding external shock. 6 Wigmore, Evidence § 1747 at 195 (Chadbourn rev.1976).

In reviewing fact situations involving the excited utterance exception, this court has followed the three-part test laid out by Wigmore:

1) There must be a startling event,

2) The words spoken must be spoken soon after the event so as not to give the person speaking the words time to fabricate (or reflect), and

3) The words spoken must relate to the startling event. State v. Barnes, 124 Ariz. 586, 589, 606 P.2d 802, 805 (1980); State v. Ritchey, 107 Ariz. at 555, 490 P.2d at 561, citing Wigmore, supra § 1750.

The time factor is probably the most important of the elements which enter into determination of this exception. McCormick, Evidence § 297 at 706 (2d ed. 1972). Where the statement is made during the exciting event this requirement usually gives courts little difficulty. Id. However, as the time interval increases, spontaneity decreases, the chance for reflection increases and so does the reluctance of courts to find the statement admissible. Id. In the case at bench, the alleged event occurred from five to ten hours before the statement was made. However, this time lapse is not in itself a bar to admission of the statement.

Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared 'nervous' or 'distraught' and that there was a reasonable basis for continuing emotional upset will often suffice.

Id. (footnotes omitted, emphasis supplied).

The guarantee of trustworthiness which serves as the basis of this exception is the stress of the event. Since the length of time such stress will last varies among individuals and with the nature of the events producing the stress, there have been no fixed time limits set to determine whether a statement will qualify as an excited utterance. M. Udall and J. Livermore, Law of Evidence, § 127 at 270-271 (2d ed. 1982). "The physical and emotional condition of the declarant is the important thing." Id. at 270. (Emphasis added). The statements need not be made immediately after the event, nor at the place of the event, and, in the case of children, "where excitement may last longer", courts have extended the time factor requirement. Id.; State v. Ritchey, 107 Ariz. at 556, 490 P.2d at 562. As this court stated in State v. Barnes, supra,

Lapse of time is only one factor to be considered. If the totality of the circumstances indicates that the statement was made in a state of shock or [declarant's] demeanor or actions had been altered, it is admissible, even though not made immediately after the event. State v. Ritchey....

124 Ariz. at 589-590, 606 P.2d at 805-806.

In an early decision by this court, we stated that:

[t]he true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement had died away so that the remark is elicited by the shock of some other act not at issue, which revives the memory of the act in question.

Keefe v. State of Arizona, 50 Ariz. 293, 298-299, 72 P.2d 425, 427 (1937); see also State v. Yslas, --- Ariz. ---, 676 P.2d 1118 (1984). The time constraints are also affected by the nature of the offense. Incidents involving rape or other sexual offenses have long been viewed as presenting unique circumstances when the spontaneous utterance exception is sought to be applied. 6 Wigmore, supra, § 1760 at 240. Generally, a less demanding time aspect is required. McCormick, supra § 297 at 709.

With these principles in mind we turn to the case at bench. Here, as in Ritchey, the crime itself is in question. No witnesses exist except the two children, one too young to testify and the other permitted to testify after the court determined she was competent. Also, as in Ritchey, the alleged perpetrator was a person close to children, and the prosecutor sought to admit the statement of a very young victim. Implicit in Ritchey and explicit today is the recognition of necessity. Unfortunately, sexual abuse does occur; when it does it is usually in secrecy. The victim is often reluctant to "tell", and the excited utterance rule is therefore broadened in crimes involving sexual abuse of young children. In recognition of this concept, Ritchey adopts a more lenient test to determine whether evidence meets the "startling event" requirement in such cases. We affirm that test today but define its limits.

Ritchey does not permit us to ignore the hearsay rule in cases of sexual abuse to young children. In Ritchey we found no error in admission of the statement even though there had been a lapse of time, the children were rational, and did not volunteer their information until asked. State v. Ritchey, 107 Ariz. at 556, 490 P.2d at 562. However, the evidence...