State v. Young

• Decision Date: 12 July 2007
• Docket Number: No. 76533-2.,76533-2.
• Citation: 160 Wn.2d 799,161 P.3d 967
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Henry Eugene YOUNG, Petitioner.

161 P.3d 967

160 Wn.2d 799

STATE of Washington, Respondent, v. Henry Eugene YOUNG, Petitioner.

No. 76533-2.

Supreme Court of Washington, En Banc.

Argued October 11, 2005.

Decided July 12, 2007.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.

Lee Davis Yates, King County Prosecutor's Office, Seattle, WA, for Respondent.

MARY E. FAIRHURST, Justice.

¶ 1 In a pretrial hearing, the trial court determined that hearsay statements were admissible as excited utterances even though the declarant later recanted the statements, the circumstances surrounding the statements provided the only corroboration that a startling event occurred, and minor discrepancies existed in the witnesses' testimony about the content of the statements. We hold that the trial court did not abuse its discretion by admitting the hearsay statements as excited utterances and affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The petitioner, Henry Eugene Young, first met 11 year old K.L., the alleged victim, in April 2002. They met on a bus while K.L. was with her adult friend and baby-sitter of more than three years, Anne Johnson. Johnson lived across the street from K.L. When Young asked Johnson for her telephone number, Johnson gave him K.L.'s number because she was "always over there" at K.L.'s house. 5 Report of Proceedings (RP) at 326.¹ When Johnson decided later that day that she no longer wanted to speak with Young, he began calling K.L.'s mother, Kayla. Young and Kayla commenced a romantic relationship.²

¶ 3 On May 2, 2002, Young spent the night at Kayla and K.L.'s house. On the afternoon of May 3, 2002, Kayla was at work and Young was still at the house when K.L. and her seven year old brother returned home from school. Johnson was in her residence across the street with Jason Barnes and other friends, including Perry Lomax. Barnes testified that K.L. came crying to the door of the house and "ran in" asking for Johnson.³ 3 RP at 82.

¶ 4 Johnson testified that K.L. told her that Young had instructed K.L. to clean her bedroom and bathroom. 3 RP at 64. K.L. then said that while she was cleaning, Young put his hand down her pants "underneath her panties and grabbed her butt." Id. K.L. also described how Young attempted to put money "down her back pocket" and tried to "undo her belt." 3 RP at 64-65. K.L. was crying throughout their conversation. 3 RP at 65. Johnson described K.L. as appearing "really scared" and "upset." Id. At one point, Johnson tried to give K.L. a hug but K.L. backed away and would not hug her. Id. Johnson testified that K.L. had never done that before. 5 RP at 333.

¶ 5 Barnes and Lomax testified that after K.L. spoke with Johnson, K.L. told them what had occurred. Barnes had known K.L. for three to four years and said he was "like a big brother to her." 3 RP at 81. He testified that K.L. said Young offered her money, "she asked him what was it for, and he said, `You know what it's for.' And he proceeded to stick his hands down her pants." 3 RP at 85-86. Barnes testified that K.L. showed him the money Young gave her. 5 RP at 453. Barnes stated that throughout her story K.L. was "crying really hard," 3 RP at 83, and that he had never seen her so upset. 3 RP at 86.

¶ 6 Lomax, who had met K.L. six or seven times and had seen her at church, heard K.L. talking to Barnes. He heard K.L. say that Young had been "touching her and making her feel uncomfortable" and that he had tried "to put money in her back pocket." 3 RP at 97. K.L. said that Young had "put[] his hands down her pants" and "touch[ed] on her panties" Id. Lomax said K.L. did not stop crying, id., and described her as "borderline hysterical." 3 RP at 99.

¶ 7 After talking to K.L., Barnes testified that he walked across the street to her house and asked Young what happened. 3 RP at 89. Barnes testified that Young replied, "`I don't [know] what you're talking about. I don't want the police here. I don't want no trouble.'" 5 RP at 455. Barnes testified that he had not mentioned anything to Young about calling the police. Id. Barnes returned to his house to determine whether K.L. was sure she was telling the whole truth.⁴ 3 RP at 89. K.L. said she was positive and that she had no reason to lie to Barnes. 3 RP at 91. Barnes and Lomax then returned to K.L.'s house to confront Young. 3 RP at 92. Barnes testified that this time nobody answered the door and that he saw someone jumping over the fence and out of the backyard. Id. At trial, Barnes testified that he could see that the person jumping over the fence was Young. 5 RP at 458. Later that day, the authorities responded to the incident.

¶ 8 The prosecuting attorney charged Young with one count of attempted child molestation in the first degree and, in the alternative, one count of communication with a minor for immoral purposes. While Young was incarcerated, K.L. wrote him a letter of apology, in which she did not recant her accusations against Young. On August 24, 2002, K.L. wrote another letter, witnessed by Kayla and notarized, recanting her statements that Young had touched her inappropriately. The letter stated that K.L. fabricated the story because she was angry with Young for trying to go out with Johnson and her mother.

¶ 9 Prior to trial, the trial court held a hearing to determine the admissibility of K.L.'s hearsay statements to Johnson, Barnes, and Lomax. The trial court heard testimony about the events on May 3, 2002, up to Barnes' second visit to K.L.'s house, after asking K.L. to confirm her story. At that point, the court indicated that it only wanted to know about "the circumstances surrounding any statement [K.L.] made at the time and what her condition was," because that was what was relevant to determining whether the statements were excited utterances. 3 RP at 92. After considering the reliability of the hearsay statements, the trial court admitted them as excited utterances.

¶ 10 At trial, in addition to other evidence, K.L. testified that Young did not touch her inappropriately and that Johnson told her to tell Barnes and the others that Young had put his hands down her pants. K.L. stated that she appeared to cry to make her story look real so that Barnes would be angry enough to force Young to leave her house. Johnson, Barnes, and Lomax testified about K.L.'s statements to them.⁵

¶ 11 The jury convicted Young of one count of attempted child molestation in the first degree. Young had two prior rape convictions, one as a juvenile and one as an adult. The adult conviction qualified Young as a persistent offender, and the trial court sentenced him to life imprisonment without the possibility of release. Young appealed his conviction on multiple grounds and the Court of Appeals affirmed in a partially published opinion. State v. Young, 123 Wash.App. 854, 99 P.3d 1244 (2004). We granted Young's subsequent petition for review on the excited utterance issues only. State v. Young, 154 Wash.2d 1025, 120 P.3d 74 (2005).

II. ISSUES

A. Does a trial court abuse its discretion by admitting a hearsay statement as an excited utterance when the declarant has recanted the statement?

B. Does a hearsay statement qualify as an excited utterance when the circumstances surrounding the statement provide the only corroboration that a startling event occurred?

C. Must a proponent of excited utterance evidence establish the exact content of the declarant's statement before the statement is admissible as an excited utterance?

III. STANDARD OF REVIEW

¶ 12 This court reviews for abuse of discretion a trial court's decision to admit a hearsay statement as an excited utterance. State v. Woods, 143 Wash.2d 561, 597, 23 P.3d 1046 (2001); State v. Strauss, 119 Wash.2d 401, 417, 832 P.2d 78 (1992). Young argues that this court's decision in State v. Brown, 127 Wash.2d 749, 903 P.2d 459 (1995), limits the discretion given to trial courts to admit excited utterances. Pet. for Review at 7. In Brown, we said:

While we are sympathetic to the Court of Appeals' desire to defer to the trial court's evaluation of the complaining witness' credibility and hence ultimately of the [statement's] reliability, this approach has no place in the excited utterance rule.

127 Wash.2d at 758, 903 P.2d 459.

¶ 13 However, in 2001 we reaffirmed that the deferential abuse of discretion standard should be used in reviewing a trial court's decision to admit an excited utterance. Woods, 143 Wash.2d at 597-98, 23 P.3d 1046 (citing State v. Briscoeray, 95 Wash.App. 167, 171, 974 P.2d 912 (1999)). In so doing, we adopted the Court of Appeals analysis in Briscoeray, which clarified that our decision in Brown did not alter the standard of review in excited utterance cases.

We read Brown to say that the trial court abused its discretion in that case, not that the abuse of discretion standard is improper in excited utterance cases generally.

The trial court in Brown abused its discretion in admitting the statements at issue, because it improperly applied the excited utterance rule.

Briscoeray, 95 Wash.App. at 171-72, 974 P.2d 912. Thus, we review the trial court's admission of the hearsay statements as excited utterances for an abuse of discretion.

IV. ANALYSIS

¶ 14 Under ER 803(a)(2), a statement is not excluded as hearsay if it is an excited utterance "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." This court has recognized that the proponent of excited utterance evidence must satisfy three "closely connected requirements" that (1) a startling event or condition occurred, (2) the declarant made the statement while under the stress of excitement of the startling event or condition, and (3) the statement related to the startling event or condition. Woods, 143 Wash.2d at 597, 23 P.3d 1046; State v. Chapin, 118 Wash.2d 681, 686, 826 P.2d 194 (1992).

A. Recantation

¶ 15 Young offers alternative...