State v. Schweitzer

• Decision Date: 25 July 2007
• Docket Number: No. 20060243.,20060243.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jodi Rae SCHWEITZER, Defendant and Appellant.
• Court: North Dakota Supreme Court

735 N.W.2d 873

2007 ND 122

STATE of North Dakota, Plaintiff and Appellee, v. Jodi Rae SCHWEITZER, Defendant and Appellant.

No. 20060243.

Supreme Court of North Dakota.

July 25, 2007.

Jodi Bass (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, and Deborah Louise Garner (appeared), Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.

Larry James Richards, Grand Forks, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Jodi Rae Schweitzer appeals from a criminal judgment entered after a jury convicted him of aggravated assault. We affirm, concluding the district court did not abuse its discretion in admitting certain testimony as an excited utterance, sufficient evidence exists to sustain the conviction, and the record on appeal does not support Schweitzer's claim that he received ineffective assistance of trial counsel.

I

[¶ 2] In December 2005, Laurie Stamness suffered a broken and dislocated jaw, a broken nose, and a laceration under her lip. Schweitzer and Stamness had been consuming alcohol and arguing at the home of Schweitzer's ex-girlfriend, Dawn Standing Chief. After sustaining the injuries, Stamness went to her home and sought treatment for her injuries the following morning. While receiving treatment at the hospital, Stamness gave a written statement to Grand Forks police that Schweitzer had assaulted her.

[¶ 3] Schweitzer was charged with aggravated assault under N.D.C.C. § 12.1-17-02. During an August 2006 jury trial, Stamness testified that she and Schweitzer were in a dating relationship on the evening she was injured and that she, Schweitzer, Standing Chief, and Dennis Hanson had been drinking at Standing Chief's apartment. At trial, Stamness testified she and Schweitzer were still dating, and she was reluctant to testify against him. Stamness nevertheless testified she had argued with Schweitzer on the night of her injuries and as she was leaving Standing Chief's apartment, she turned away and remembered she had left her purse and eyeglasses "in the kitchen area or somewhere" when someone assaulted her by striking her in the nose and face. Stamness testified at trial that she did not see who had struck her. Stamness said she then walked home and recalled that her sons were there when she walked in the door, but she did not recall her conversation with them. She was taken to the emergency room the next day by her sister, Nancy Johnson. Stamness testified that while in the emergency room she gave a written statement that Schweitzer had assaulted her to Grand Forks Police Officer Jennifer Lammers. On cross-examination, however, Stamness also acknowledged that she later told someone she thought she could have fabricated the story because she was angry with Schweitzer.

[¶ 4] Nancy Johnson testified that in a telephone call from Stamness's son, whom she described as "extremely upset," she learned about the assault approximately two hours after it had occurred. Over defense counsel's hearsay objection, Johnson testified that Stamness's son told her "the bastard broke her nose," referring to Schweitzer. Johnson also testified Stamness told her that Schweitzer had assaulted her.

[¶ 5] Officer Lammers testified Stamness had told her Schweitzer had grabbed her when she tried to leave Standing Chief's residence and started hitting her. Officer Lammers testified Stamness said Schweitzer had kicked her in the face with his steel-toed boots while she was on the ground. Officer Lammers also testified Stamness had given a contemporaneous written statement and it was common for victims of domestic violence to recant or change their stories.

[¶ 6] Standing Chief testified she had heard a commotion in another room, but she did not see who assaulted Stamness. Standing Chief's testimony reflects that she observed Schweitzer and Stamness arguing just before the assault and observed Stamness's condition immediately following the commotion. Standing Chief does not suggest someone else was present during the commotion, and she denied having caused the injuries to Stamness. Troy Peterson, M.D., an oral maxillofacial surgeon, testified Stamness was referred to him "by the emergency room" for evaluation of possible jaw and nose fractures. Dr. Peterson's examination revealed Stamness had sustained a nasal fracture, jaw fracture, and tooth fracture, in addition to a laceration associated with the fractured tooth. Dr. Peterson testified he treated her for the nasal and jaw fractures. Dr. Peterson testified Stamness's injuries were consistent with someone's having been punched or kicked in the face. Dr. Peterson also testified, over defense counsel's objection, that Stamness had told him during the examination that her injuries were the result of being assaulted by her boyfriend.

[¶ 7] After presenting Dr. Peterson's testimony, the State rested. Schweitzer did not call any witnesses, but moved for a judgment of acquittal. The district court denied Schweitzer's motion, concluding there was sufficient evidence to submit the case to the jury. The jury found Schweitzer guilty of aggravated assault.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Schweitzer contends the district court erred in allowing hearsay testimony to be admitted into evidence as an excited utterance. Nancy Johnson testified she found out about her sister's assault shortly after it occurred. At trial, Johnson testified that Stamness's oldest son had called her and was quite upset upon seeing his mother after she was assaulted:

Q And when did he call you?

A Approximately an hour and a half to two hours after what happened.

Q What was his state of mind at the time that he had called you?

A He was extremely upset. His — very extremely upset. He said his mom was bleeding —

THE COURT: Just — not what he said just what was his state of mind.

THE WITNESS: Severely upset.

Q (Ms. Garner continuing) And what did he tell you had happened?

MR. SORENSEN: Objection, Your Honor, that would be hearsay.

THE COURT: I'm going to overrule the objection. I believe it qualifies as an excited utterance. Please proceed.

Q (Ms. Garner continuing) What did he tell you had happened?

A The first thing he said was "the bastard broke her nose".

Q And who was he referring to?

A Jodi Schweitzer.

Q What did you do next?

A I said who? Who broke her nose? And he said Jodi broke my mom's nose, and of course, I said what, you know, I was so —

Q What did you do next?

A I called the police.

[¶ 10] "We review a district court's evidentiary ruling under an abuse-of-discretion standard." State v. Streeper, 2007 ND 25, ¶ 11, 727 N.W.2d 759. A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Mulske, 2007 ND 43, ¶ 5, 729 N.W.2d 129.

[¶ 11] Rule 803(2), N.D.R.Ev., provides: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (2) Excited Utterance. 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." "The proponent of the evidence has the burden of establishing the foundational facts to make a statement admissible as an `excited utterance' exception to the hearsay rule." State v. Whalen, 520 N.W.2d 830, 832 (N.D.1994); see also Staiger v. Gaarder, 258 N.W.2d 641, 647 (N.D.1977). The foundational facts must show: (1) a startling event or condition; and (2) the statement is the product of the declarant's stress or excitement resulting from the startling event or condition. Falcon v. State, 1997 ND 200, ¶ 23, 570 N.W.2d 719; Whalen, at 832.

[¶ 12] Johnson's testimony establishes that Stamness's son was "extremely upset" when he saw his mother bleeding. The startling event or condition here is Stamness's physical condition after having been assaulted. Johnson's testimony regarding the statement by Stamness's son reflects the son's stress and excitement when he saw his mother. Although Schweitzer argues Johnson's testimony about the son's statement is not admissible as an "excited utterance" because the son did not have personal knowledge of the assault, the startling event or condition affecting Stamness's son was not observing the assault, but was seeing his mother arriving home bloodied shortly after having been assaulted. We conclude the district court did not abuse its discretion in permitting Johnson to testify regarding the son's statement under the "excited utterance" hearsay exception in N.D.R.Ev. 803(2).

[¶ 13] Schweitzer's argument about the son's lack of personal knowledge, however, does suggest an issue of "hearsay within hearsay" or double hearsay. Under N.D.R.Ev. 805, "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these Rules." See also State v. Lefthand, 523 N.W.2d 63, 68-69 (N.D.1994) (offered private investigator testimony was classic example of hearsay-within-hearsay and was properly excluded); Hirschkorn v. Severson, 319 N.W.2d 475, 478 n. 5 (N.D.1982) (probable "hearsay-within-hearsay" question noted but declining to address it because parties did not raise the question on appeal).

[¶ 14] Johnson's testimony does not establish how Stamness's son learned that Schweitzer had assaulted his mother. Johnson's testimony is silent as to whether Stamness told her son that Schweitzer had assaulted her, whether the son assumed his mother's assailant was Schweitzer, or whether he came to this conclusion by some other means. Schweitzer asserts there is no dispute...