State v. Thorngren, Docket No. 34806 (Idaho App. 6/24/2009), Docket No. 34806.
| Decision Date | 24 June 2009 |
| Docket Number | Docket No. 34806. |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. DONNA KAY THORNGREN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Joel D. Horton, District Judge.
Judgment of conviction for first degree murder, affirmed.
Greg S. Silvey, Kuna, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Donna Kay Thorngren appeals from her judgment of conviction for first degree murder. For the reasons set forth below, we affirm.
Curtis Thorngren was murdered on January 12, 2003. Later that same day, Donna Thorngren (Curtis's wife) and Austin Thorngren (their teenage son) discussed the murder in a shed. During that conversation, Thorngren told Austin that she had killed his father. Shortly after Thorngren left the shed, Austin's friend entered and asked Austin what was wrong. Austin answered that his mother had just killed his father.
In June 2006, a grand jury indicted Thorngren for first degree murder and Austin for accessory to murder. Many pretrial motions were filed by both Thorngren and the state, including a motion by Thorngren for relief from prejudicial joinder. Thorngren's motion for relief from prejudicial joinder was argued and decided in April 2007. That motion asked the district court to sever the trials of Thorngren and Austin, arguing that a joint trial for the co-defendants would violate Thorngren's Confrontation Clause rights because Austin could not be forced to testify. The district court granted the motion to sever and, in that context, appeared to conclude that the statement Austin made to his friend in the shed about his mother killing his father did not qualify as an excited utterance under the hearsay exceptions. Thorngren's trial was set to begin with jury selection on July 23, 2007.
Thorngren filed a motion to dismiss in May 2007, arguing that the grand jury indictment process was flawed. A hearing was held on that motion and the transcripts from that hearing reveal that there was some confusion between the state and Thorngren as to whether the shed statement would be admissible at trial as an excited utterance. The district court denied the motion to dismiss in a written order filed on July 16, 2007. That order explained that the shed statement qualified as an excited utterance and would be admissible at Thorngren's trial.
Thorngren then filed a motion for a continuance. The district court denied the motion, and Thorngren was subsequently found guilty after a trial of first degree murder. I.C. §§ 18-4001 to 18-4004. Thorngren appeals.
On appeal, Thorngren alleges three errors by the district court all relating to its determination that Austin's friend could testify about the statement Austin made in the shed. Specifically, Thorngren asserts that the district court abused its discretion in concluding the shed statement was an excited utterance, the district court violated Thorngren's right to due process by reversing an earlier ruling that the statement was inadmissible hearsay, and that the district court abused its discretion by refusing to grant a continuance.
A. Excited Utterance
Thorngren argues that the district court erred in concluding that the shed statement qualified as an excited utterance. Specifically, Thorngren asserts the district court abused its discretion in concluding the statement was an excited utterance because the court only outlined the factors that weighed against the statement's admission, but then concluded without explanation that the statement was an excited utterance and was admissible. The state counters that there was substantial evidence presented that provided the district court with the necessary indicia of reliability to support its conclusion that the shed statement was admissible as an excited utterance.
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." I.R.E. 801(c); State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the Idaho Supreme Court. I.R.E. 802.
The excited utterance exception authorizes the admission of hearsay if the testimony recounts 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." I.R.E. 803(2). To fall within this exception, there must be a startling event that renders inoperative the normal reflective thought process of the observer, and the declarant's statement must be a spontaneous reaction to that event rather than the result of reflective thought. State v. Parker, 112 Idaho 1, 4, 730 P.2d 921, 924 (1986).
In considering whether a statement constitutes an excited utterance, the totality of the circumstances must be considered. State v. Field, 144 Idaho 559, 568, 165 P.3d 273, 282 (2007). An evaluation of the totality of the circumstances includes a review of the following five factors: the nature of the startling condition or event, the amount of time that elapsed between the startling event and the statement, the age and condition of the declarant, the presence or absence of self-interest, and whether the statement was volunteered or made in response to a question. Id. Whether to admit a statement as an excited utterance is committed to the trial court's discretion, and that decision will not be disturbed on appeal absent an abuse of that discretion. Id. at 567, 165 P.3d at 281. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
A statement made three hours after a young child witnessed the death of a sibling has been held to be an excited utterance. State v. Griffith, 144 Idaho 356, 363, 161 P.3d 675, 682 (Ct. App. 2007). In that case, a four-year-old child witnessed Griffith violently spanking her two-year-old brother. Three hours after the spanking, which resulted in the death of the child, the four-year-old told a social worker that Griffith had spanked her brother hard and then her brother messed his pants and closed his eyes. This Court noted that, "when a significantly distressing event is involved, Idaho's appellate courts have upheld the admission of statements as excited utterances, especially when made by young children, even when several hours have passed since the event." Id. Because the startling event in that case was the death of a sibling and because the declarant was a young child, this Court reasoned that a three-hour interval did not preclude a subsequent statement from being an excited utterance. Id.
In contrast, a lengthy recitation given in a different location ten minutes after a fight describing that fight and implicating a boyfriend was determined not to be an excited utterance. State v. Hansen, 133 Idaho 323, 326, 986 P.2d 346, 349 (Ct. App. 1999). In that case, the victim fought with Hansen, her boyfriend. After escaping from the fight, the victim took a ten-minute walk to the police station where she offered "a lengthy recitation of the circumstances surrounding the fight and a request to press charges." Id. This Court concluded that the victim's statement at the police station did not qualify as an excited utterance because the victim's anger with Hansen could have provided motivation to fabricate or exaggerate, the statement was made in a location other than where the fight occurred, and the statement was a "protracted narrative." Therefore, this Court determined that the circumstances did not reveal the special reliability necessary for the exception.
In this case, the shed statement was testified to by Austin's friend before the grand jury. Austin's friend testified that he and Austin spent the night at Austin's grandmother's house on January 11, 2003. The friend testified that, when they awoke the next day, Austin went outside to the shed to smoke a cigarette and that Thorngren arrived and asked for Austin. The friend directed Thorngren to the shed and, five to ten minutes later, the friend went to the shed. Upon entering the shed, Austin asked his friend if he could have a minute or two to speak to Thorngren alone. The friend left Austin and Thorngren in the shed. The friend then testified to the following:1
Q. Now, you're there. You've just told us that [Thorngren's] talking with Austin in the shed. At some point, did you see [Thorngren] leave?
A. Yes.
Q. Where did you go?
A. Back out to the shed.
Q. Who was in the shed?
A. Austin.
Q. Where was he?
A. Still on the couch, I believe.
Q. And do you remember Austin saying anything to you at that time?
A. Yes, I asked him what was wrong because he was visibly shaken, and he said, I think my mom did it.
Q. Did you have any idea what he was talking about?
A. Yeah. Yes, I did. I don't know, I just got the feeling right when he said it. There had been so much buildup and talk about them wanting to get his dad out of the picture and all that, that I just kind of got the feeling that that's what he was talking about.
Q. [Austin's friend], help us understand when you said, you asked him what was wrong, what was he doing to make you think something was wrong?
A. He just didn't seem to be himself. He...
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