State v. Wallace

Decision Date08 June 1988
Docket NumberNo. 87-1155,87-1155
Citation524 N.E.2d 466,37 Ohio St.3d 87
PartiesThe STATE of Ohio, Appellant, v. WALLACE, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. A period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule. (Evid.R. 803, construed.)

2. The admission of a declaration as an excited utterance is not precluded by questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant's expression of what is already the natural focus of the declarant's thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant's reflective faculties.

3. The testimonial incompetency of a child declarant does not bar the admission of the child's declarations as excited utterances.

In this case we consider the excited-utterance exception to the hearsay rule.

On the afternoon of February 26, 1986, Diane Johnson left her five-year-old daughter, Tangy, with Tangy's grandmother. About two hours later, Tangy was found unconscious in her mother's apartment and the defendant-appellee, Thomas Wallace, Jr., was found watching television in the same room. Tangy had been bruised, cut, and strangled.

A rescue unit took Tangy to Children's Hospital. Tangy arrived at the emergency room in a coma, unconscious and unresponsive to normal stimuli. She was placed in the intensive care unit and drifted in and out of consciousness throughout that evening and into the morning of the next day. Other than an antacid to prevent stomach bleeding, she was not under the influence of any medication.

Around 9:00 in the morning, Polly Partin, a social worker, was with Tangy. As Tangy drifted in and out of consciousness she cried, and Partin tried to comfort her. During one of Tangy's lucid periods, Tangy said, "[Y]ou know he hurt me." Partin asked, "[W]ho hurt you?" Tangy said, "[T]he man." Partin asked, "Do you know what man hurt you? Do you know what happened to you?" Several times Tangy said, "[H]e cut me, he used a knife, he choked me." Sometime later Partin asked, "[D]o you know the name of the person that hurt you?" Tangy said, "Thomas."

Throughout her hospital stay Tangy remained fearful and upset, especially in the presence of men. When male medical personnel came near her she would put both arms over her face and duck her head. When a male police officer came to ask questions about the assault, she answered a few questions and then became hysterical, cried, covered her face with her hands, turned her back on the officer, and would not respond to further questions.

At trial, Tangy was called as a witness. Efforts to establish her competency to testify were unsuccessful because Tangy would not verbally or physically respond to the questions asked by the prosecutor. Thereafter, Partin testified, over objections by defense counsel, to the declarations made by Tangy while coming out of unconsciousness at the hospital.

Wallace was convicted of attempted murder and two counts of felonious assault. The court of appeals, with one member dissenting, reversed the convictions on the ground that Partin's testimony was hearsay which did not come within the excited-utterance exception to the hearsay rule. 1

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, James E. Applegate and James E. Butler, Cincinnati, for appellant.

James A. Vogele, Cincinnati, for appellee.

HERBERT R. BROWN, Justice.

The out-of-court statements made by Tangy to Polly Partin are hearsay. The issues in this case are whether Tangy's statements qualify as excited utterances for purposes of Evid.R. 803(2), and whether the inability, at trial, to establish the testimonial competency of a child declarant affects the admissibility of the child's out-of-court declarations. We hold that Tangy's statements fit within the excited-utterance exception to the hearsay rule, and that the inability to establish the competency of a child declarant does not affect the admissibility of the declarations for purposes of Evid.R. 803(2).

I

Evid.R. 803(2) 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." The admissibility of such statements does not depend upon the availability of the declarant as a witness. Evid.R. 803.

The circumstances surrounding an excited utterance--a startling event, a statement relating to that event, a declarant under the stress of the event--do not allow the declarant a meaningful opportunity to reflect on statements regarding the event. Without opportunity to reflect, the chance that a statement is fabricated, or distorted due to a poor memory, is greatly reduced. This is the rationale for allowing an excited utterance into evidence. 2

The excited-utterance exception is essentially a codification of Ohio common law governing spontaneous exclamations. 3 At common law, this court applied a four-part test in determining what constituted a spontaneous exclamation:

"(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective,

"(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs,

"(c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and

"(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration." Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, paragraph two of the syllabus (followed and approved in State v. Duncan [1978], 53 Ohio St.2d 215, 7 O.O.3d 380, 373 N.E.2d 1234, paragraph one of the syllabus).

Elements one, three, and four of the Potter test are clearly satisfied in this case: the physical assault was a startling occurrence, Tangy's statements related to the assault, and Tangy, the victim, had the opportunity to personally observe her assailant. The element at issue is whether Tangy's declarations were made before there had been time for the nervous excitement caused by the assault to lose its domination over her reflective faculties.

A

The standard for reviewing decisions of the trial judge on excited-utterance exceptions was set forth by Judge Taft in Potter, supra, at 500, 55 O.O. at 394, 124 N.E.2d at 146-147:

"It is elementary that the trial judge is to decide those questions of fact which must be decided in order to determine whether certain evidence is admissible. * * * If his decision of those questions of fact, as reflected in his ruling on the admissibility of * * * [the] declaration, was a reasonable decision, an appellate court should not disturb it."

In the present case, the trial judge found that Tangy's declarations met the requirements necessary to gain admission as excited utterances. Our task is to decide whether that was a reasonable determination.

B

The fact that approximately fifteen hours passed from the assault to the time of the declarations is not dispositive. "The doctrine of res gestae, as applied to exclamations, should have its limits determined, not by the strict meaning of the word 'contemporaneous,' but rather by the causal, logical or psychological relation of such exclamations with the primary facts in controversy." State v. Lasecki (1914), 90 Ohio St. 10, 106 N.E. 660, paragraph three of the syllabus. See State v. Duncan, supra (two-hour interval); State v. Rohdes (1986), 23 Ohio St.3d 225, 23 OBR 382, 492 N.E.2d 430; accord Bake v. Indus. Comm. (1939), 135 Ohio St. 652, 15 O.O. 17, 22 N.E.2d 132, paragraph one of the syllabus; Stough v. Indus. Comm. (1944), 142 Ohio St. 446, 27 O.O. 378, 52 N.E.2d 992, paragraph one of the syllabus ("[a] declaration or statement, to be admissible as part of the res gestae, is not required to be exactly simultaneous with the primary fact in controversy, but it must be a spontaneous or an impulsive declaration or statement and not the mere narration of a past transaction"); Schmitt v. Doehler Die Casting Co. (1944), 143 Ohio St. 421, 28 O.O. 366, 55 N.E.2d 644. Each case must be decided on its own facts. State v. Duncan, supra, 53 Ohio St.2d at 219-220, 7 O.O.3d at 383, 373 N.E.2d at 1237 (" * * * it is patently futile to attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation").

The evidence in this case is that Tangy was unconscious, with intermittent periods of consciousness or semi-consciousness, throughout the fifteen-hour period between the assault and her statements. A period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule. 4 Tangy's unelicited statement upon awakening--"[Y]ou know he hurt me"--indicates that the excitement of the assault was still dominating her thoughts.

Many courts have admitted declarations made after a significant period of unconsciousness or semi-consciousness. See Britton v. Washington Water Power Co. (1910), ...

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