West Valley City v. Hutto

• Decision Date: 22 June 2000
• Docket Number: No. 990211-CA.,990211-CA.
• Citation: 5 P.3d 1,2000 Utah Ct. App. 188
• Parties: WEST VALLEY CITY, Plaintiff and Appellee, v. Wade HUTTO, Defendant and Appellant.
• Court: Utah Court of Appeals

5 P.3d 1

2000 Utah Ct. App. 188

WEST VALLEY CITY, Plaintiff and Appellee, v. Wade HUTTO, Defendant and Appellant.

No. 990211-CA.

Court of Appeals of Utah.

June 22, 2000.

Steven D. Miller, Larsen & Rammell, West Valley City, for Appellant

J. Richard Catten, West Valley City Attorney's Office, West Valley City, for Appellee.

Before Judges BENCH, BILLINGS, and ORME.

OPINION

ORME, Judge:

¶ 1 Appellant Wade Hutto appeals his conviction for assault in violation of Utah Code Ann. § 76-5-102 (1999), and his conviction for criminal mischief in violation of Utah Code Ann. § 76-6-106 (1999), both arising from a domestic dispute with his live-in girlfriend. Specifically, Hutto challenges the trial court's admission of the victim's out-of-court statements under the hearsay rule's "excited utterance" exception. We reverse defendant's convictions and remand for a new trial.

BACKGROUND

¶ 2 On October 25, 1998, Officer Jensen of the West Valley City Police Department was dispatched at approximately 9:00 a.m. to respond to a "late report" of domestic violence. Upon arrival at the destination specified by dispatch, Officer Jensen found the victim at her mother's apartment, about six blocks from defendant Hutto's residence. Officer Jensen observed that the victim was dressed in a t-shirt and jeans and was not wearing shoes or socks. Jensen also saw a small cut on the victim's forehead, red marks on her neck, a one- to two-inch-diameter red mark on her abdomen, and a four- or five-inch-diameter red mark on her back. The victim acknowledged she had called the police and during the next thirty to forty-five minutes told Jensen what had happened six hours earlier.

¶ 3 During the interview, the victim told Jensen that her live-in boyfriend, Hutto, had assaulted her between 3:00 and 3:30 a.m. that morning. She told Jensen that she was in bed asleep when Hutto woke her up and asked her to go get some drugs. She told Hutto it was early, she was tired, and she did not want to go. When she refused, Hutto got angry and started hitting and pushing her. The victim stated that during the argument Hutto (1) hit her in the side of her head, which knocked her head into another object, cutting her forehead; (2) hit her in the back with something, although she did not know what it was; and (3) had stood on her neck. The victim told Jensen that she had then left Hutto's residence and ran to her mother's house.

¶ 4 During the interview, Jensen asked the victim to fill out a witness statement and had to continually ask her to keep writing, as she was quite distracted and agitated. Only the first page of this statement was found and entered into evidence at trial because the remainder had been lost. This portion of the written statement was admitted for the limited purpose of helping determine whether the victim's statements were excited utterances. The statement, in the victim's handwriting, featured each "i" dotted with a small heart. Also during the interview, the victim's mother was present and was herself so agitated that another officer was "dealing with her, keeping her calm so that [Jensen] could talk to the victim."

¶ 5 After concluding the interview, Jensen went to Hutto's residence to further investigate. Jensen found Hutto working in his garage. When asked about the incident, Hutto denied touching the victim and said, "she does it to herself" and "[s]he inflicts injuries upon herself." Officer Jensen observed wood chips scattered around the kitchen of the home and saw a pile of what appeared to be pieces of a desk or table. Later, this was determined to be the remains of a dresser the victim owned. At trial, Hutto took the stand and denied physically assaulting the victim in any way. He alleged that he had merely asked the victim about the stain he was going to use on the dresser he was restoring for her. He said she responded by throwing a dresser drawer on his foot, at which point Hutto went out to the garage to avoid a fight, and when he returned he found the dresser destroyed and the victim gone.

¶ 6 At trial, the victim did not testify.¹ Instead the prosecutor called only one witness, Officer Jensen, to relate what the victim had said about the incident. The trial court allowed Jensen to recount the statements made by the victim, in order to determine whether the statements were excited utterances admissible under Rule 803(2) of the Utah Rules of Evidence. Hutto's counsel objected, stating that Hutto would be denied his rights to confront and cross-examine the victim—rights guarantied by the Utah and United States Constitutions—and that the statements were not excited utterances.

¶ 7 During Jensen's testimony, she described the victim as "extremely upset," "very agitated," and "quite nervous." Jensen also described the victim as fluctuating emotionally throughout the interview, and stated that even during calm periods the victim would still shake and cry. During the more agitated periods, Jensen described the victim as unable to focus.

¶ 8 The trial court concluded from these facts that the victim's statements about the events, many of which were in response to Jensen's questions, were excited utterances. Jensen was allowed to recount the story told to her during her interview with the victim, basically in its entirety. The only other trial witness was Hutto. Hutto was convicted and now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 9 The sole issue on appeal is whether the trial court erred in admitting the victim's out-of-court statements to Officer Jensen under the hearsay rule's "excited utterance" exception. "We will not disturb a trial court's admission of evidence unless the court has clearly abused its discretion." State v. Kinross, 906 P.2d 320, 322-23 (Utah Ct.App.1995). See State v. Pena, 869 P.2d 932, 938 (Utah 1994).

NATURE OF THE "UTTERANCE"

¶ 10 Hearsay is defined under Rule 801(c) 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." Utah R. Evid. 801(c). Hearsay statements are "generally excluded as evidence on the ground that, since the statements are not made under oath, and often only the witness to the declaration—not the declarant—is available for cross-examination at trial, the statement is generally unreliable." State v. Mickelson, 848 P.2d 677, 683 (Utah Ct.App.1992). See State v. Cude, 784 P.2d 1197, 1199 (Utah 1989). Moreover, the fact finder is denied the opportunity to observe the witness, so "the witness's perception, interpretation, memory, sincerity, and communication cannot be fully tested." Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law § 8-36 (1996).²

¶ 11 Sometimes, however, hearsay statements are made under circumstances which offer substantial guaranties of trustworthiness, minimizing the likelihood of falsification. See Cude, 784 P.2d at 1199-1200 ("Some hearsay . . . is considered reliable because of the circumstances under which the declaration is made."). "Excited utterances" are one such exception. See Utah R. Evid. 803(2). ¶ 12 Rule 803(2) recognizes an exception to the usual rule against admitting hearsay for "statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," whether or not the declarant is available to testify at trial. Utah R. Evid. 803(2). The reasoning is simple: the stress and excitement of the event suppress the declarant's ability to reflect or calculate self interest in a manner that would produce a lie. See State v. Kinross, 906 P.2d 320, 324 (Utah Ct.App.1995) ("`The theory of [the excited utterance exception] is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.'") (quoting Fed R. Evid. 803(2) advisory committee note).<sup>3</sup> Lacking the "wherewithal to fabricate a falsehood, `the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.'" Mickelson, 848 P.2d at 683 (quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990)).

¶ 13 The classic example of an excited utterance is a witness's exact recollection of the declarant's spontaneous "sound bite"—an uncoached blurting out—made while the declarant observed the exciting event or closely thereafter. See, e.g., United States v. Lawrence, 699 F.2d 697, 703 (5th Cir.) ("You're a dead man."), cert. denied, 461 U.S. 935, 103 S.Ct. 2103, 77 L.Ed.2d 309 (1983); State v. Bray, 106 Ariz. 185, 472 P.2d 54, 57 (1970) ("Daddy shot Mommy. Mommy is dead."); Layman v. State, 652 So.2d 373, 375 (Fla. 1995) ("[O]h my God."); Walczak v. General Motors Corp., 34 Ill.App.3d 773, 340 N.E.2d 684, 687 (1976) ("It won't turn, Mom," referring to steering wheel); Wright v. Swann, 261 Or. 440, 493 P.2d 148, 149-50 (1972) ("Oh, God . . . . It wasn't your fault[.]"); State v. Smith, 1985 Tenn.Crim.App. LEXIS 3020, *5 (Feb. 14, 1985) ("the son-of-a-bitch cut me").

¶ 14 The trial court exceeded its discretion in allowing Jensen to recount her entire interview with the victim, instead of limiting the admission of her testimony to particularized utterances. See State v. Thomas, 777 P.2d 445, 449 (Utah 1989). A witness simply cannot recount a victim's entire story under the guise of the excited utterance exception. The exception is much narrower than that, and is limited to truly "spontaneous outbursts." United States v. Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991). See also Thomas, 777 P.2d at 449 ("[W]e believe that we would be pushing the limits of the rule to hold admissible the entire contents of this . . . interview as an `excited utterance.'"). The Rule 803(2) hearsay exception permits excited utterances to be...