State v. Solomon, 244-81

• Decision Date: 23 March 1984
• Docket Number: No. 244-81,244-81
• Citation: 476 A.2d 122,144 Vt. 269
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Jeannette Cecilia SOLOMON.

Page 122

476 A.2d 122

144 Vt. 269

STATE of Vermont v. Jeannette Cecilia SOLOMON.

No. 244-81.

Supreme Court of Vermont.

March 23, 1984.

David G. Miller, Franklin County State's Atty., and Christopher A. Micciche, Deputy State's Atty., St. Albans, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Following trial by jury, defendant appeals her conviction of arson in the first degree under 13 V.S.A. § 502. We reverse and remand for a new trial.

Defendant presents three issues for review, but, because of our disposition of this case, we need only address the first issue: whether the trial court committed reversible error by permitting certain testimony concerning a car that was observed at the scene shortly before the fire.

The events that led to the conviction took place in the early morning hours of October 7, 1979. At about 2:30 that morning a fire broke out in a building in Swanton known as the Pizza Hut. The downstairs portion of the building was a snack bar and game room operated by Michael Martel. Upstairs was a loft area used by Martel as his principal place of residence. Martel's father used the rear of the building for storage and workspace in his furniture repair business.

Shortly before the fire, a passerby, Lynda Bell, observed a car parked by the Pizza Hut. She did not recognize the car, but took note of it while checking the area outside her father's garage next door. Later, while watching the fire, she described the car to Martel's mother, who had just been driven to the fire by defendant. When Mrs. Martel heard the description, she exclaimed that "it fit [defendant's] car to a 'T'."

Defendant and Michael Martel lived together for several years. After they separated in 1975, their relationship became bitter. Defendant made threats against Martel, both in his presence and elsewhere. In the months following the fire, defendant told several persons she had set the fire, claiming that she had finally gotten even with Martel. At the trial, however, defendant denied she had set the fire, maintaining that her earlier statements had been made only because many different people had asked her about the fire, she was "tired of being hounded all the time," and she thought people would not believe her whatever she said.

Investigators came to conflicting opinions regarding the origin of the fire. Two investigators believed the cause of the fire was electrical; one investigator concluded the fire had been set, beginning in the area and in the manner earlier described by defendant. More than five months after the fire occurred, defendant was charged with the crime.

Defendant contends that the utterance of Mrs. Martel and the testimony given by the witness Lynda Bell concerning her conversation with Mrs. Martel constituted prejudicial inadmissible hearsay and that because neither person could remember Lynda Bell's description of the car, this violated defendant's constitutional right to confrontation of the witnesses against her. The State maintains the statement was properly admitted, either as an excited utterance exception to the hearsay rule (now codified as V.R.E. 803(2)), or as a present sense impression exception (now codified as V.R.E. 803(1)). These exceptions to the hearsay rule are among several that at common law were grouped together under the general heading res gestae--hearsay statements that were admitted because they accompanied and explained an event or condition otherwise relevant. See Reporter's Notes to V.R.E. 803.

We first consider whether Mrs. Martel's statement that Lynda Bell's description "fit [defendant's] car to a 'T' " qualifies as an excited utterance. Two requirements are essential to the excited utterance exception: (1) a startling event or condition, and (2) a spontaneous utterance in reaction to the event or condition made under the stress of excitement and not as a result of reflective thought. See McCormick on Evidence § 297 (E. Cleary 2d ed. 1972); 4 J. Weinstein and M. Berger, Weinstein's Evidence, 803-78 to 803-89 (1981). Although questioned by those who contend the reactions and observations of an excited person are likely to be distorted, the underlying rationale for the exception lies in the assumption that a person's powers of reflection and fabrication will be suspended when he is subject to the excitement of a startling event, and any utterances he makes will be spontaneous and trustworthy. See McCormick on Evidence, supra; 4 J. Weinstein and M. Berger, Weinstein's Evidence, supra, 803-79 to 803-80.

When Mrs. Martel's statement is examined in the light of the above requirements, it is readily apparent that the statement does not fit within the excited utterance exception. The event to which Mrs. Martel was responding was Lynda Bell's description of the car she had seen approximately ten minutes earlier. Although the fire they were watching did qualify as a "startling event," it was not the event to which Mrs. Martel was responding. There is no evidence that the description of the car was in any way "startling" or unusual. In fact, at the time of trial neither of the participants to the conversation could remember any distinctive or unique features that would distinguish the car in their minds. Lynda Bell remembered the car as a mid-sized American car of a darker color, while all that Mrs. Martel could recall was that the car was described as older and dark. In addition, Mrs. Martel paused "for a couple of seconds" before...