State v. Underwood
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FILED: October 15, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. TYRONE UNDERWOOD, Defendant-Appellant. Marion County Circuit Court 12C40311 A152163 Courtland Geyer, Judge. Argued and submitted on April 29, 2014. Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge. ORTEGA, P. J. Affirmed. Garrett, J., concurring. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: [ ] [ ] [ ] Respondent No costs allowed. Costs allowed, payable by Costs allowed, to abide the outcome on remand, payable by 1 ORTEGA, P. J. 2 Defendant appeals a judgment of conviction for fourth-degree felony 3 assault constituting domestic violence, ORS 163.160(3); ORS 132.586(2); coercion, ORS 4 163.275; strangulation, ORS 163.187; and menacing constituting domestic violence, ORS 5 163.190; ORS 132.586(2). We reject the second of defendant's two assignments of error 6 without discussion and write to address only his first assignment of error, in which he 7 argues that the trial court erred in admitting, under the excited utterance exception to the 8 hearsay rule, statements that the victim made to her aunt recounting the domestic 9 violence episode that was the subject of defendant's convictions. The factual 10 circumstances in this case, when viewed as a whole, demonstrate that the victim was 11 under the stress of excitement from the startling event of defendant's abuse and threats 12 when she made the statements to her aunt. We conclude, therefore, that the trial court did 13 not err in ruling that the statement was admissible under the excited utterance exception 14 and, accordingly, affirm. 15 We review the facts consistently with the trial court's ruling that the 16 victim's statements constituted an excited utterance, "accepting reasonable inferences and 17 reasonable credibility choices that the trial court could have made." State v. 18 Cunningham, 337 Or 528, 539-40, 99 P3d 271 (2004). 19 Defendant and the victim were in a relationship, living together, and the victim 20 was pregnant. Their relationship was characterized by defendant's control over the 21 victim; he often would follow the victim into the bathroom, kept possession of her phone 1 1 2 and purse, and did not like when she spent time with friends or family. The v ictim had an ultrasound appointment on January 9, 2012. The next 3 day, after the victim received a phone call from her aunt, defendant became angry and 4 pushed the victim up against the wall and squeezed her head tightly. The victim 5 attempted to leave the house, but defendant grabbed her hair and prevented her from 6 leaving, wrestling with her and pushing her to the ground. 7 Defendant later allowed the victim to call her aunt to come and pick her up. 8 But after that phone call, defendant again became angry, grabbed a large butcher knife, 9 and held it to the victim's throat and to her stomach, telling her, "I will kill you if you go." 10 When the aunt arrived with the victim's brother and knocked on the door, defendant put 11 his hand over the victim's mouth and nostrils so that she could not breathe. Defendant 12 eventually released the victim and allowed the aunt and brother to enter. At some point 13 during their visit, defendant grabbed the victim's brother by the face. Fearing for the 14 safety of her aunt and brother, and believing that, if she said something to them defendant 15 might kill her, the victim decided not to leave with her aunt, telling her, "It'll only make 16 things worse." 17 Later that night, the victim was still having difficulty breathing, so 18 defendant accompanied her to the hospital. While at the hospital, defendant did not leave 19 her side. The victim later testified that her pain was an 8 on a scale of 10 at the time of 20 the assault, that the next day the pain continued and she felt like she had run a 21 "marathon," and that her body hurt for about a week. 2 1 The next day, defendant also went with the victim to a school appointment 2 with her aunt and brother. At one point, the aunt and the victim were alone, and the aunt 3 questioned the victim about her bruises. The victim made up excuses, later testifying that 4 she feared something would happen to her aunt and brother, or that defendant would hurt 5 her again when they got home. After defendant and the victim arrived home, defendant 6 allowed the victim to use her phone to talk to her cousin. The victim used that 7 opportunity to surreptitiously text her aunt to come and get her, asking her "to pretend 8 that she had something in her car that she wanted to drop-off for the victim." When her 9 aunt arrived, the victim escaped with her aunt, leaving with only the clothes she was 10 wearing and her phone. As the victim and her aunt drove away, the victim "broke down 11 and began crying hysterically" and recounted to her aunt "what defendant had done." 12 The aunt insisted that they call the police. Defendant was charged and convicted of 13 fourth-degree assault constituting domestic violence, coercion, strangulation, and 14 menacing constituting domestic violence. 15 The state sought to admit testimony from the victim's aunt recounting the 16 victim's statements about the domestic violence and threats to her life. Defendant 17 objected and argued that the statements were inadmissible hearsay. The state responded 18 that the statements were admissible under the "excited utterance" hearsay exception. 19 OEC 803(2). The trial court recognized that there are cases in which statements made 20 more than five days after the triggering event were found to fit within the exception, as 21 well as cases where statements uttered less than an hour after the triggering event were 3 1 found not to fit within the exception. Ultimately, given the facts before it, the court 2 overruled the objection and denied defendant's subsequent motion for mistrial. The court 3 explained: 4 5 6 7 8 9 10 "[T]he nature of the event itself was one where [the victim] had had a recent ultrasound of her unborn baby, and was relating what happened with the placing of the knife around her pregnant belly. She was extremely emotional at the time. Her testimony was [that] she was basically affecting an escape at the time. And so, despite the intervening period of time, I do find that there is convincing evidence that she was still under the stress of the event to which the statement related." 11 We review a trial court's legal conclusion that a statement was admissible 12 under the excited utterance exception to hearsay for legal error. Cunningham, 337 Or at 13 544. However, we review the trial court's factual finding that the statement was made 14 while under the stress of excitement caused by a startling event to determine whether 15 evidence in the record supports that finding. Id. 16 Defendant argues that the victim's statements to her aunt do not qualify as 17 an excited utterance because "nearly a day [had] elapsed between the startling event and 18 the statement," giving the victim time for reflective thought. Defendant also contends 19 that the victim's ability to develop a plan "to leave defendant by deceiving him," 20 coordinate that plan with her aunt and brother, and execute that plan demonstrates that 21 the victim was not under the stress of excitement caused by the startling event. 22 Defendant points to the victim's attendance at a school appointment and her private 23 conversation with her aunt as evidence and implies that the startling event was limited to 24 the physical violence that he inflicted on the victim. 4 1 In response, the state contends that the passage of time is one of several 2 factors relevant to the excited utterance analysis and that all of the factors must be 3 evaluated in the totality of the circumstances. Those factors, in the state's view, support 4 the trial court's determination that the statements were "made under the stress of 5 excitement caused by the startling event." 6 Hearsay is an out-of-court statement offered to prove the truth of the matter 7 asserted and is generally inadmissible unless the statement is excluded from the definition 8 of hearsay or falls within an exception. OEC 801; OEC 802. OEC 803(2) provides an 9 exception for an excited utterance, which is "[a] statement relating to a startling event or 10 condition made while the declarant is under the stress of excitement caused by the event 11 or condition." For a hearsay statement to qualify as an excited utterance, three 12 requirements must be satisfied: "(1) a startling event or condition must have occurred; 13 (2) the statement must have been made while the declarant was under the stress of 14 excitement caused by the event or condition; and (3) the statement must relate to the 15 startling event or condition." State v. Carlson, 311 Or 201, 215, 808 P2d 1002 (1991). 16 Defendant does not dispute the first or third requirement but disagrees that the victim was 17 under the stress of excitement caused by the startling event or condition. 18 The rationale underlying the second requirement of the excited utterance 19 exception is that statements made under the stress of excitement are spontaneous and, 20 therefore, trustworthy because the declarant does not have an opportunity to reflect and 21 fabricate. Cunningham, 337 Or at 543. In Carlson, the Supreme Court described the 5 1 2 3 4 5 6 7 8 9 10 11 criteria for determining that a statement is spontaneous: "The spontaneity-of-the-utterance requirement, i.e., the requirement that the statement of the declarant be 'made while the declarant was under the stress caused by the event or condition,' has both a causal and a temporal dimension. The declarant's excitement must have been caused by the startling event, and the declarant's statement must have been made while the excitement persisted. * * * Criteria that bear on the trial court's determination of the spontaneity of the utterance are 'lapse of time, place, content of the utterance, physical or mental condition of the declarant, whether made in response to an inquiry, and presence or absence of a motive to fabricate.'" 12 311 Or at 218 (emphasis in original, quoting Cleary, Strong, Brown & Mostellar, 13 Evidence, Cases and Materials 17 (4th ed 1988)); see Laird C. Kirkpatrick, Oregon 14 Evidence ยง 803.02, 726 (5th ed 2007) (noting that the trial court can also look at the 15 nature of the event). An excited utterance is admissible hearsay because the stress of the 16 startling event allows the declarant to speak spontaneously rather than having the time to 17 reflect on the event and fabricate a story. See State v. Hutchison, 222 Or 533, 537, 353 18 P2d 1047 (1960). Consequently, the lapse of time to permit reflective thought "may not 19 of itself be controlling, [but] it is an important factor, if not the most important factor to 20 be considered." Zeller v. Dahl, 262 Or 515, 519, 499 P2d 1316 (1972). But see United 21 States v. Iron Shell, 633 F2d 77, 85 (8th Cir 1980) ("The lapse of time between the 22 startling event and the out-of-court statement although relevant is not dispositive in the 23 application of [the excited utterance exception]."). 24 While time to reflect is an important factor in the analysis, it must be 25 understood in context of the nature of the event and the declarant's physical and 26 emotional state to evaluate whether those and "other factors may prolong the impact of a 6 1 stressful event." State v. Moen, 309 Or 45, 60-61, 786 P2d 111 (1990) (internal quotation 2 marks omitted). In Moen, the Supreme Court found that statements made by the victim 3 to her doctor would have been admissible under the excited utterance exception. Id. The 4 victim made the statements at the second of two doctor's appointments in which she was 5 agitated and nervous and, while crying, told the doctor that she was upset about her son- 6 in-law living in her home, that he had been physically abusive to her daughter, and that 7 she thought he "might kill them both." Id. at 60. Sometime between the two visits, the 8 son-in-law had threatened the victim, her daughter, and her grandson with a shotgun. Id. 9 at 61. The court did not discuss when the threats occurred, other than to say that they 10 happened sometime in the month between the two doctor's appointments. The court 11 reasoned that "[c]ontinuing emotional shock or unabated fright and other factors may 12 prolong the impact of a stressful event, making it proper to resort to [the excited utterance 13 exception] despite long lapses of time." Id. at 60 (internal quotation marks omitted). 14 Thus, the excited utterance exception applied in spite of a time lapse when (1) the 15 startling events were threats of death and (2) the continuing fright of living with the 16 defendant prolonged the period under which the victim was under the stress of that event. 17 In this case, evidence in the record supports the trial court's finding that the 18 victim's statements to her aunt were made under the stress of excitement caused by the 19 startling event. Defendant's threats against the pregnant victim's life and his violent acts, 20 which interfered with the victim's ability to breathe and caused her considerable pain-- 21 together with the victim's recent ultrasound--prolonged the stressful event. Defendant 7 1 threatened to kill the pregnant victim if she left, at one point holding a knife to her 2 stomach to demonstrate potential harm to the fetus. The victim believed that defendant 3 would follow through on his threats because he had just violently assaulted and choked 4 her. Those facts, combined with defendant's almost constant presence from the time of 5 the initial abuse until the victim's escape, were sufficient for the court to find that the 6 victim's statements were made under "continual emotional shock or unabated fright." 7 The victim spent the 24 hours after the initial assault with defendant, whom she feared 8 leaving without further harm to herself or her family. Moreover, the victim was in 9 significant pain and had difficulty breathing during the 24-hour period and had just had 10 11 an ultrasound, further demonstrating why the stress of excitement was prolonged. The victim's visible condition when she made the statements similarly 12 supports the trial court's finding. She was "hysterically crying" and "physically shaking" 13 once she reached a place of safety. This court has frequently used similar physical and 14 emotional reactions to conclude that a trial court did not err in determining that the victim 15 was under the stress of excitement. See, e.g., State v. Yong, 206 Or App 522, 534, 138 16 P3d 37 (2006) (concluding that the victim was under the stress of excitement caused by 17 the defendant's presence and pointing to the victim being "visibly upset, shaking, very 18 worried, [and] pacing"); Cunningham, 337 Or at 541 (evaluating the victim's statements 19 in light of her escalating divorce proceedings that had led to her "emotional 20 deterioration"). 21 Defendant's contention that the victim was not under "continuing emotional 8 1 shock or unabated fright" is unavailing. It is reasonable to infer that the victim's ability to 2 plan an escape is evidence of her continued agitated state rather than a restored capacity 3 for reflective thought, as defendant contends. The victim could only leave her home by 4 lying to the aggressor who, less than 24 hours before, had threatened to kill her if she left. 5 In addition, the victim's excuses to her aunt about her bruises and her decision not to 6 reveal defendant's abuse during a brief moment alone with her aunt support the trial 7 court's finding that the victim was fearful of defendant and under the prolonged stress of 8 excitement; it was not necessarily, as defendant argues, evidence that the victim had the 9 opportunity for "reflective thought." 10 In sum, the evidence was legally sufficient to support the trial court's 11 determination that the victim's statements made to her aunt were made under stress of the 12 excitement caused by defendant's violence, which was prolonged by the subsequent 13 events ending with her escape: those events created "continuing emotional shock or 14 unabated fright." 15 Accordingly, we conclude that the trial court did not err in determining that 16 the victim's statements were admissible under the excited utterance exception to the 17 hearsay rule. 18 Affirmed. 19 GARRETT, J., concurring 20 I join in the conclusion that the victim's statements were admissible under 21 OEC 803(2), the "excited-utterance" exception to the hearsay rule. I write separately 9 1 because the trial court made a comment below that indicates a need to clarify the 2 analytical framework that we use to determine whether a statement falls within the 3 excited-utterance exception. 4 The rationale behind the excited-utterance exception is that an event may be 5 so startling, upsetting, or painful that it "temporarily stills [a declarant's] capacity for 6 reflection and produces utterances free of conscious fabrication." 1981 Conference 7 Committee Commentary to OEC 803(2); see also State v. Hutchison, 222 Or 533, 537, 8 353 P2d 1047 (1960) (describing a similar rationale). Thus, the Supreme Court has 9 explained that "[o]ne of the basic determinations which must be made by the trial judge 10 upon the offer of testimony as an excited utterance or spontaneous statement is whether 11 the statement of the declarant was a spontaneous reaction to the occurrence or event, 12 rather than the result of reflective thought." Zeller v. Dahl, 262 Or 515, 518-19, 499 P2d 13 1316 (1972) (internal quotation marks omittted). Consequently, Oregon courts have 14 historically followed an excited utterance test that explicitly required a finding that a 15 statement was spontaneous. See, e.g., State v. Kendrick, 239 Or 512, 515-16, 398 P2d 16 471 (1965) (holding that "spontaneous exclamations" fall within an exception to the 17 hearsay rule when these criteria exist: "(1) there must be some occurrence startling 18 enough to produce nervous excitement and render the utterance spontaneous and 19 unreflecting; (2) the utterance must be before there has been time to contrive and 20 misrepresent and while reflective powers are yet in abeyance; (3) the utterance must 21 relate to the circumstances of the startling occurrence preceding it"). 10 1 After the adoption of OEC 803(2) in 1981, however, Oregon courts began 2 to recast the test for an excited utterance. 1 In State v. Carlson, 311 Or 201, 215, 808 P2d 3 1002 (1991), the Supreme Court set forth three findings that a trial court must make 4 before concluding that the exception applies: "(1) a startling event or condition must 5 have occurred; (2) the statement must have been made while the declarant was under the 6 stress of excitement caused by the event or condition; and (3) the statement must relate to 7 the startling event or condition." That articulation tracks the words of OEC 803(2), 8 which refers to a declarant being "under the stress of excitement" rather than a declarant's 9 speaking "spontaneously." Nothing in the legislative history, however, suggests that the 10 legislature intended to abandon the spontaneity requirement. Rather, the commentary 11 reiterates that the "key factor in determining whether an utterance is 'excited,' and 12 therefore qualifies under the exception, is the degree to which it is spontaneous." 1981 13 Conference Committee Commentary to OEC 803(2). 14 Likewise, nothing in cases such as Carlson suggests that the spontaneity 15 requirement has been abrogated. To the contrary, Carlson implies that the "under the 16 stress" requirement is simply another way of describing the requirement that the 17 statement be spontaneous. That is evidenced by this passage from Carlson: "The 18 spontaneity-of-the-utterance requirement, i.e., the requirement that the statement of the 19 declarant be 'made while the declarant was under the stress caused by the event or 1 OEC 803(2) provides that hearsay is admissible if it consists of "[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." 11 1 condition,' has both a causal and a temporal dimension." 311 Or at 218 (emphasis 2 omitted). 3 The Supreme Court's opinion in State v. Cunningham, 337 Or 528, 99 P3d 4 271 (2004), also suggests that the spontaneity-of-the-utterance and the under-the-stress 5 requirements are simply different ways of expressing the same concept. In addressing the 6 second prong of the three-prong Carlson test, the court said: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Next, we must consider whether the victim was under the stress of the excitement of that startling event at the time that she made the disputed statements and whether that event caused the victim's stress or excitement. Carlson, 311 Or at 218. As this court explained in Carlson, the traditional rationale for allowing excited utterances to be admitted over a hearsay objection is that the 'excitement caused by the startling event or condition temporarily stills the capacity for reflection' and thus is likely to produce 'statements free of conscious fabrication.' Id. at 215 (citing Legislative Commentary to Oregon Evidence Code 154 (1981)). In other words, the spontaneity of a statement made under the stress of a startling event is used as an indicator that the statement is reliable. See State v. Hutchison, 222 Or 533, 537, 353 P2d 1047 (1960) (stating same in regard to res gestae, doctrinal predecessor to excited utterance exception). Criteria that bear on the trial court's determination of the spontaneity of the utterance include 'lapse of time, place, content of the utterance, physical or mental condition of the declarant, whether made in response to an inquiry, and presence or absence of a motive to fabricate.' Carlson, 311 Or at 218 [quoting Cleary, Strong, Brown & Mostellar, Evidence, Cases and Materials 17 (4th ed 1988)]." 26 Cunningham, 337 Or at 542-43; see also State ex rel Juv. Dept. v. C. M. C., 243 Or App 27 335, 340, 259 P3d 938 (2011) ("Whether a statement qualifies for admission as an 28 excited utterance involves factual issues, including whether the statement was made 29 while the declarant was actually under the stress of the startling event or condition; that 30 is, whether the declarant's capacity for reflection was stilled, rendering it unlikely that he 12 1 or she could consciously fabricate the statement."); State v. Stonaker, 149 Or App 728, 2 740, 945 P2d 573 (1997), rev den, 327 Or 123 (1998) (describing the second Carlson 3 factor as the "spontaneity-of-the-utterance" factor). 4 Thus, Carlson and Cunningham treat the spontaneity-of-the-utterance and 5 the under-the-stress requirements as closely related concepts. Neither case, however, 6 explicitly discusses the nature of that relationship, which could be a source of confusion 7 in cases where a declarant may have been "under stress," as we commonly understand 8 that phrase, yet also have had time for reflective thought such that his or her statement 9 cannot be regarded as "spontaneous." 10 That potential for confusion is revealed by a comment made by the trial 11 court in this case. In deciding that the aunt's testimony about the victim's statements was 12 admissible, the trial court stated that it was relying on the three "elements for an excited 13 utterance" discussed in Carlson. The trial court continued: 14 15 16 17 18 "I noticed there was a case in the commentary to the rule, back from 1972, Zeller, and that focused on the period--the opportunity for the witness to reflect, and so I think that's why that was in my memory. But as I stated earlier, that's not actually an element, but one of the criteria to determine in deciding the second prong." 19 The trial court's comments can be interpreted as casting doubt on the 20 continued relevance of Zeller and minimizing the importance of the distinction between 21 statements that are spontaneous and those that are the result of reflective thought. 22 Although Zeller predates both the adoption of OEC 803(2) and Carlson, it remains good 23 law. The legislative commentary regarding OEC 803(2) approvingly cited Zeller for the 13 1 proposition that "the time interval [between the startling event and the utterance] is one of 2 the most important factors in determining spontaneity, particularly if there is evidence 3 that the declarant engaged in reflective thought during the interval." 1981 Conference 4 Committee Commentary to OEC 803(2) (emphasis added). In that passage, 5 "spontaneity" is the thing to be determined; it is not a "criterion" that is used to determine 6 something else. 7 In my view, there is only one way to reconcile the three-part test in Carlson 8 with the continued centrality of the spontaneity requirement. The "under stress" prong of 9 the Carlson test cannot be satisfied by a showing that a declarant was under just any type 10 of stress. Rather, it must be shown that the declarant was under a specific type of stress-- 11 one that "temporarily stills the capacity for reflection and produces utterances free of 12 conscious fabrication." 1981 Conference Committee Commentary to OEC 803(2). 13 In this case, regardless of any analytical imprecision below, the record 14 supports the finding that the victim's statements were made while she was under the 15 stress of excitement caused by the preceding events, including her rush to escape from 16 defendant. The evidence shows that the victim left the apartment without even taking her 17 purse, began walking to the car, saw defendant watching her, increased her pace, entered 18 the car quickly, and urged her aunt to "Go. Go Now." The victim was shaking and crying 19 when she began speaking about her ordeal. That is a sufficient basis on which to find that 20 the victim's capacity for reflection had been temporarily stilled. 14
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