State v. Whalen, Cr. N

• Decision Date: 24 August 1994
• Docket Number: Cr. N
• Citation: 520 N.W.2d 830
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael Wayne WHALEN, Defendant and Appellant. o. 930360.
• Court: North Dakota Supreme Court

Page 830

520 N.W.2d 830

STATE of North Dakota, Plaintiff and Appellee, v. Michael Wayne WHALEN, Defendant and Appellant.

Cr. No. 930360.

Supreme Court of North Dakota.

Aug. 24, 1994.

Brett M. Shasky (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

Howard Marvin Anderson, Jr. (argued), Fargo, for defendant and appellant.

LEVINE, Justice.

Michael Wayne Whalen appeals from the verdict, an order denying his motion for new trial, and the sentence imposed upon his conviction of reckless endangerment, terrorizing, and carrying a concealed weapon. We affirm.

Shortly before 1:00 a.m. on April 7, 1993, Whalen, Melissa Ness, Kevin Gelinske, Carmen Houglum, and Lori Zepper were involved in an incident in the parking lot of Ness's apartment building in Fargo. Whalen allegedly threatened to shoot Gelinske, fired a handgun at Gelinske, pointed and held a handgun to Ness's neck and collarbone, and waved or pointed a handgun at Houglum's face. The incident ended with the arrival of Fargo police officers.

After a jury trial, Whalen was found guilty of reckless endangerment, terrorizing, and carrying a concealed dangerous weapon. Whalen was sentenced to three years of imprisonment for the reckless endangerment conviction, with the first two years to be served without benefit of parole, under Sec. 12.1-32-02.1, N.D.C.C. Whalen was sentenced to three years of imprisonment for the terrorizing conviction and one year of imprisonment for the concealed weapon conviction. The sentences were ordered to run concurrently.

On appeal, Whalen contends that the trial court erred in admitting prejudicial hearsay evidence and in applying the minimum mandatory sentencing provision of Sec. 12.1-32-02.1, N.D.C.C.

At approximately 1:30 a.m. on April 7, 1993, Ness gave Sergeant Mueller of the Fargo Police Department a written statement about the events that had just occurred. She also made oral statements in response to clarifying questions posed by Sergeant Mueller. At trial, Ness repudiated much of what she had said in her oral and written statements at the scene of the incident. Ness testified that she had lied and exaggerated matters in her original statements because she was angry and upset with Whalen and wanted to get him into trouble because she had learned that Whalen had been unfaithful to her while they were dating. Ness also testified that she still loved Whalen and hoped they would someday be married.

Over Whalen's hearsay objection, Sergeant Mueller was allowed to testify as to what Ness had stated at the scene. The trial court ruled that Ness's statement constituted an excited utterance, which, under Rule 803(2), N.D.R.Ev., is not excluded by the hearsay rule. Mueller testified that Ness told him (1) that when Gelinske walked toward Whalen and Ness, "Whalen raised the handgun, and what she told me was she believed that he was aiming at him and fired one shot;" (2) that "she had broken up her relationship with Mr. Whalen ... and ... he really didn't like the fact that she had a new boyfriend;" (3) that Whalen "grabbed her by the coat and forced her into his car after he'd fired the shot;" (4) that Whalen "held the gun to her chest;" (5) that Whalen "pressed her to the seat and held the gun against her ... collarbone;" (6) that Whalen said of Gelinske "No, I'm going to shoot him if he doesn't leave;" and (7) that when Whalen let her out of his car, "she thought at any time that, you know, he would just shoot her because she continued walking."

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."

Whalen has asserted a number of reasons, going to credibility, relevance, and weight, why Ness's statements at the time of the incident should not have been admitted in evidence under the excited utterance exception to the hearsay rule. None of the contentions is persuasive. The trial court's evidentiary ruling will be reversed only if it abused its discretion. Hoover v. Thompson, 787 F.2d 449 (8th Cir.1986); Williston Farm Equipment, Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545 (N.D.1993).

"The excited utterance exception is a firmly rooted hearsay exception." United States v. Moore, 791 F.2d 566, 574 (7th Cir.1986). Since the 1700s, there has been conscious recognition of a hearsay exception, often under the term "res gestae," for exclamations by persons present at affrays or other exciting occasions. John Henry Wigmore, Evidence Sec. 1746 (Chadbourn rev. 1976). "The assumption underlying this exception is that a person under the sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication and that, consequently, any utterance will be spontaneous and trustworthy." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(2), p. 803-101 (1994). "[L]ack of capacity to fabricate rather than lack of time to fabricate is the justification for this rule." Id. at 803-105.

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. Staiger v. Gaarder, 258 N.W.2d 641, 647 (N.D.1977). Those facts must demonstrate (1) a startling event or condition; and (2) the statement as the product of the declarant's stress or excitement resulting from the startling event or condition. Id. See also Weinstein's Evidence, supra, at pp. 803-102, 803-104.

Whalen's firing of a handgun, whether at Gelinske or merely in the presence of the small group assembled in the parking area of Ness's apartment building, and his waving or pointing of the gun toward persons in the group constituted more than a single startling event to anyone there. The startling nature of the events would, of course, be intensified if, as Ness stated to Sergeant Mueller, Whalen also threatened to shoot Gelinske and forced Ness into a car and pressed the gun to her collarbone. Such startling events would naturally cause Ness and others involved in the incident to be excited. That Ness was still excited when she gave her statements a few minutes after the incident ended was confirmed by Sergeant Mueller's testimony that when he took statements at the scene of the incident from Ness, Houglum, and Zepper, "they were all pretty shaken up by the events that had just previously taken place. They were in a pretty highly...