State v. Smith, 940187

• Decision Date: 20 December 1995
• Docket Number: No. 940187,940187
• Citation: 909 P.2d 236
• Parties: STATE of Utah, Plaintiff and Appellee, v. Stanley Allen SMITH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 236

909 P.2d 236

STATE of Utah, Plaintiff and Appellee, v. Stanley Allen SMITH, Defendant and Appellant.

No. 940187.

Supreme Court of Utah.

Dec. 20, 1995.

Jan Graham, Att'y Gen., J. Frederic Voros, Jr., Asst. Att'y Gen., Salt Lake City, for plaintiff.

Kent E. Snider, Michael D. Bouwhuis, Ogden, for defendant.

STEWART, Associate Chief Justice:

Stanley Allen Smith was convicted of aggravated kidnapping, rape of a child, and two counts of sodomy on a child, all of which are first degree felonies. The trial judge imposed the greatest minimum mandatory sentence of fifteen years with a maximum of life imprisonment on each count, see Utah Code Ann. § 76-3-201(7)(c), and ordered the sentences to run consecutively. Smith argues that the trial court erred (1) in admitting the victim's hearsay statements to a child abuse investigator and police officer under the excited utterance exception to the hearsay rule and (2) in admitting testimony connecting him to the victim through DNA evidence. In addition, he argues that (3) his counsel was ineffective in failing to engage a DNA expert for the defense and (4) the trial court erred in imposing the greatest minimum sentence for each offense and ordering that the sentences run consecutively.

On May 8, 1993, a six-year-old girl was abducted at knife point from her neighborhood in Corinne, Utah, forced into a car taken to another place, and raped and sodomized. She was found by neighbors about an hour after disappearing and taken to a hospital, where she was questioned by LuEllen Brown, a child abuse investigator, while a physician was conducting a physical examination of the victim. At that time, some one to two hours after being found, she was still bleeding from the injuries suffered during the assault, in pain, crying, and very upset. She told the investigator that a man had driven her to a dirt road, raped and sodomized her, and returned her to Corrine. She described his clothing and his car, including some of its contents. The victim also described the cause of her injuries to the examining physician, the police, and the neighbors who found her. It was obvious from the medical examination that she had suffered physical injuries caused by rape and sodomy. It took more than an hour of surgery to repair some of the physical injuries.

Approximately two days after the attack, Keith Brady, a family friend and an Ogden City police officer, interviewed the victim in the hospital. At that time, she was still emotionally detached and in something of a dissociative state, suffering from "psychic shock," and was "just kind of far away from herself." Although reluctant to talk, she stated that she had been taken to a dirt road where the car got stuck and a truck had pulled the car out. At trial, the social worker and the police officer testified to the victim's statements under the excited utterance exception to the hearsay rule.

On the basis of information given by the victim, the investigation focused on defendant. Various items of physical evidence confirmed the victim's story. Fibers on the victim's clothing matched fibers in Smith's shirt and in the carpet of his car. Pubic hair matching defendant's was found on the victim, and head hairs consistent with the victim's were found in defendant's back seat. Blood of the victim's type (eighteen percent of the population) and semen of defendant's type (two percent of the population) were found on the back seat of his car. In addition, a witness testified that during the time of the victim's abduction, he encountered Smith, whose car was stuck alongside a dirt road, and saw a young girl in Smith's car when he pulled it out of the mire. A criminologist assigned to the serology DNA section of the State Criminal Forensics Laboratory testified to a DNA match. He stated that the blood in the vehicle matched the victim's and was inconsistent with defendant's. He concluded that the random probability of the match was, by conservative estimates, about one in fourteen thousand.

I. EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE

Out-of-court declarations offered for the truth of the matter asserted are inadmissible as hearsay unless they fit within one of the established exceptions to the hearsay rule. Utah R.Evid. 801-803. Exceptions to the hearsay rule are based on factors that provide assurances of testimonial reliability sufficient to dispense with the usual means of purging testimony of error and falsehood, i.e., the oath, cross-examination, and the trier of fact's assessment of the declarant's veracity.

Rule 803(2) establishes the "excited utterance" exception to the hearsay rule and defines an excited utterance as "[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." Under this exception, three conditions must be met to allow an out-of-court excited utterance into evidence. State v. Cude, 784 P.2d 1197, 1200 (Utah 1989). First, an "event or condition" must occur that is sufficiently startling to cause an excitement that stills normal reflective thought processes. Second, the declarant's declaration must be a spontaneous reaction to the event or condition, not the result of reflective thought. Third, the utterance must relate to the startling event. Id.; see also State v. Thomas, 777 P.2d 445, 449 (Utah 1990).

The generally accepted rationale for the exception is that declarations made during a state of excitement temporarily still a declarant's capacity to reflect and thereby produce utterances free of conscious fabrication. ¹ Cude, 784 P.2d at 1199-1200; see also John W. Strong et al., McCormick on Evidence § 272 (4th ed. 1992).

Usually the most difficult issue in determining the admissibility of an excited utterance is whether the statement was uttered with a spontaneity produced by emotional excitement to a degree that provides a warrant of trustworthiness. The determination requires an evaluation of a variety of factors, including the nature of the startling event and the intensity of the excitement or other emotional effect on the declarant. ² The statement need not be strictly contemporaneous with the startling event to be spontaneous, as is the case with the "present sense impression" exception, see Rule 803(1), but the justification for the exception disappears as the emotional excitement of the declarant subsides and the declarant's capacity for reflection revives. Thus, although the utterance need not be contemporaneous with the event, temporal proximity is a factor to be considered. State v. Wetzel, 868 P.2d 64, 69 (Utah 1993).

It is not enough, however, to meet the requirements of the exception that a declarant merely be subject to a degree of aroused emotion produced by the startling event when a hearsay declaration is made. Some emotional states, such as fear, embarrassment, and shock, that are produced by a traumatic event may have a long-term, even a lifetime, emotional impact of some degree, but attenuated, lingering after-effects of shock, excitement, or fear cannot justify the admission of an out-of-court declaration made long after a startling or traumatic event. Statements made in such circumstances have no greater warrant of reliability than hearsay statements generally.

In short, the determinative factor, subject to no precise or absolute standard, is whether the state of the declarant's mind was such that because of a high degree of emotional arousal, the declaration was spontaneous in the sense that the declarant's emotional arousal or excitement at the time of the statement strongly suggested that the statement came purely from the declarant's memory, unchanged or distorted by a consideration of the consequences of the statement. " 'The crucial question ... is whether the declarant was still under the influence of the event to the extent that his statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.' " Thomas, 777 P.2d at 449 (quoting Johnston v. Ohls, 76 Wash.2d 398, 457 P.2d 194, 199 (1969)). As is clear from the facts in Cude, intervening actions may strongly suggest that a declarant's statements are untrustworthy. Cude, 784 P.2d at 1200. In assessing a declarant's state of mind, therefore, it is necessary to consider the likely effects of the declarant's age, the declarant's physical and mental condition, the circumstances and nature of the startling event, the subject matter of the statement, and the time lapse between the event and the utterance. United States v. Moses, 15 F.3d 774, 777-78 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2691, 129 L.Ed.2d 822 (1994).

Even though excitement may in some instances distort a person's perception or other cognitive powers that affect the accuracy of a person's statements, ³ it is, nonetheless, generally true that excited utterances are likely to have greater evidentiary value to a trier of fact than in-court statements to the same effect. In holding that the excited utterance exception does not violate the federal Confrontation Clause, Chief Justice William Rehnquist made that point for the Court in White v. Illinois, 502 U.S. 346, 355-56, 112 S.Ct. 736, 742-43, 116 L.Ed.2d 848 (1992):

But those same factors that contribute to the statements' reliability cannot be recaptured, even by later in-court testimony. A statement that has been offered in a moment of excitement--without the opportunity to reflect on the consequences of one's exclamation--may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom.

Smith challenges the admissibility of the out-of-court statements made by the victim to LuEllen Brown, the child abuse investigator, and Officer Keith Brady, a family friend, on the ground that they did not meet the requirements of an excited utterance. In particular, Smith argues that the victim's statements were...