STATE v. WALLACE, 37 Ohio St.3d 87 (1988)

524 N.E.2d 466

No. 87-1155Supreme Court of Ohio.Submitted March 2, 1988 —
Decided June 8, 1988.

Criminal law — Evidence — Excited utterances — Period of unconsciousness does not destroy effect of startling event, when — Evid. R. 803(2) — Testimonial incompetency of child does not bar admission of excited utterances, when.

O.Jur 3d Criminal Law §§ 1192, 1193. O.Jur 3d Evidence §§ 334, 337.

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[2], 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.

APPEAL from the Court of Appeals for Hamilton County, No. C-860460.

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

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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., prosecuting attorney, Christian J. Schaefer, James E. Applegate and James E. Butler, for appellant.

James A. Vogele, for appellee.

H. BROWN, J.

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]

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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 i 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

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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 i 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. 627, 15 O.O. 7, 22 N.E.2d 130 Dugan 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, 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 semiconsciousness, 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

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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), 59 Wn. 440, 110 P. 20
(declarant was unconscious for five or six days, then semi-conscious for two or three days, before regaining consciousness and making declaration); Guthrie v. United States
(C.A.D.C. 1953), 207 F.2d 19 (declaration made eleven hours after a brutal assault when the declarant was found in a “half-way unconscious” condition); Davis Transport v. Bolstad
(Tex.Civ.App. 1956), 295 S.W.2d 941 (declaration made two and one-half to three hours after accident rendered declarant unconscious, even though declarant experienced brief periods of consciousness during that time); see, generally, Annotation, Admissibility, as Part of Res Gestae, of Accusatory Utterances Made by Homicide Victim after Act (1965), 4 A.L.R. 3d 149, 194, Section 15. The record in this case contains no evidence that, during her intermittent periods of consciousness or semi-consciousness, Tangy had a meaningful opportunity to reflect on the assault.

C
The defendant-appellee stresses the fact that Tangy’s statements were elicited, in part, by questioning. The cases considering this problem cannot all be reconciled. However, we are most persuaded by those decisions which find admissibility where the questioning does not negate the spontaneity of the declaration.

For example, in State v. Burns (1987), 524 A.2d 564, 566, the Rhode Island Supreme Court admitted declarations by an eleven-year-old in a sexual assault case on the following facts:

“When Mrs. Burns, Ann’s mother, came home after the episode was over, she thought the pair looked `suspicious.’ She wondered why the child was already in her pajamas; yet when she asked her daughter, her daughter gave no reason.

“The defendant left the house within minutes of Mrs. Burns’ arrival. Her mother asked Ann again what was the matter, and this time, as the child began to speak, her eyes filled with tears and she hesitantly related the details of the assault.”

In State v. Watson (1976), 242 N.W.2d 702, 704, the Iowa Supreme Court held:

“The fact that Miss Berry made her statements in response to Six’s inquiry asking what was wrong does not necessarily rob them of their spontaneity. See State v. Smith, 195 N.W.2d 673, 676
(Iowa 1972); Gibbs v. Wilmeth, 261 Iowa 1015, 1024, 157 N.W.2d 93, 98-99 (1968). The question was a most natural one under the circumstances. It was not calculated to elicit information which would otherwise have been withheld. It did not render the response inadmissible.”

Similarly, the Utah Supreme Court admitted declarations given in response to questions, observing:

“Defendant also argues that the

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girl’s statements were not spontaneous since they were made in response to specific questions. Again, statements made in response to questions may still be under the stress of the event. As stated in Johnston v. Ohls, 76 Wn.2d 398, 457 P.2d 194
(1969):

“`The crucial question in all cases is whether the statement was made while the declarant was still under the influence of the event to the extent that his statement could not be the result of fabrication; intervening actions, or the exercise of choice or judgment.'” State v. Kaytso (1984), 684 P.2d 63, 64.[5]

In United States v. Glenn (C.A.D.C. 1972), 473 F.2d 191, declarations made in response to these questions — “What happened?”, “Who did it?”, “Who is `he’ and what did he do?”, “Where does he live?” and “What did he do to you?” — were held admissible as excited utterances.

In Ohio, declarations given in response to questioning have been admitted pursuant to a number of lower court decisions. I State v. Evans (Apr. 27, 1987), Butler App. No. CA86-09-130, unreported, the admitted declarations were made in response to these questions: “What’s the matter Kristen?”, “[H]ow honey[?]”, “[W]hat else happened[?]”, “[W]hat did he do to you[?]” and “[W]hat else[?]” In State v. Silvis (Jan. 31, 1986), Erie App. No. E-85-12, unreported, the declarations of a child who witnessed a physical assault on her brother were admitted pursuant to the testimony of her grandmother: “I asked her why Marshall was crying and she says, he flew against the wall, and I said, you know, like, who flew him against the wall? She said Dave.” Similarly, in State v. Dickerson (1977), 51 Ohio App.2d 255, 5 O.O. 3d 377, 367 N.E.2d 927, an affirmative answer to the question, “Did he shoot you, man?”, was admitted as an excited utterance.[6]

Admittedly, courts have taken different

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approaches to the admissibility of declarations (as excited utterances) given in response to questioning.[7] However, we think the better view (and the view consistent with the rationale for the excited-utterance exception to the hearsay rule) is that such declarations are admissible provided certain safeguards are met.

Accordingly, we hold that 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.

Here, Tangy initiated the interaction with Polly Partin by stating, “[Y]ou know he hurt me.” Partin responded by asking questions which were simple and straightforward: “[W]ho hurt you?”, “Do you know what happened to you?” and “Do you know the name of the person who hurt you?” Partin’s questions served to facilitate Tangy’s expression rather than to cause reflection.

Accordingly, it was reasonable for the trial judge to find that the excitement of the assault was still dominant over Tangy’s thought processes and that Tangy’s statements were the unreflective expressions of her belief.

II
The appellee argues that, regardless of the excited-utterance exception, Tangy’s declarations were inadmissible because, at trial, the prosecution was unable to qualify Tangy as a competent witness.[8]

First, it has long been the common law of Ohio that the testimonial incompetency of a child-declarant does not bar the admission of the child’s declarations as excited utterances State v. Lasecki, supra, at 20, 106 N.E. at 663 (four-year-old) New York, Chicago St. Louis RR. Co. v. Kovatch (1929), 120 Ohio St. 532, 538, 166 N.E. 682, 684 (five-year-old). The overwhelming majority of jurisdictions which have considered this issue are in accord. See, generally, the cases cited in Annotation, Admissibility of Testimony Regarding Spontaneous Declarations Made by One Incompetent to

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Testify at Trial (1982 and 1987 Supp.), 15 A.L.R. 4th 1043, Section 3.

Second, Tangy’s ability to accurately perceive and relate facts was never shown to be deficient. Under Ohio law, the competency of individuals ten years or older is presumed, while the competency of those under ten must be established.[9] Efforts to establish Tangy’s competency failed because Tangy refused to respond to the prosecutor’s questions. Her refusal was not shown to be the result of inability. Rather, the more logical inference is that Tangy (like many children and some adults) suffered a paralyzing fear when placed in a courtroom environment. However, Tangy’s ability to “receive just impressions” and “relate them truly” was never tested. She was incompetent because of presumption of incompetency, not a demonstration of incompetency.

Third, appellee overlooks the fact that, if we were to require the competency of an infant declarant to be established before allowing the infant’s declarations into evidence, then the infant’s competency would have to be established as of the time of the declarations. Cf. Huprich v. Paul W. Varga Sons, Inc.
(1965), 3 Ohio St.2d 87, 32 O.O. 2d 61, 209 N.E.2d 390, paragraph one of the syllabus (“[w]here a witness is over ten years of age when he testifies but was under ten at the time of the happenings about which he proposes to testify, the capability of such witness to receive `just impressions’ of such happenings must necessarily be determined as of the time of those happenings”). Tangy’s silence at trial does not resolve the issue of her competency at the time she made the declarations.

The most relevant evidence of Tangy’s ability to “receive just impressions” and “relate them truly” at the time of the declarations is to be found in the declarations themselves. Here, there was independent testimony from medical professionals establishing that Tangy was bruised, cut, and strangled. Part of Tangy’s declaration was that she had been cut with a knife and choked. Tangy’s words, in themselves, demonstrate at least a minimal ability to accurately perceive and relate what had happened to her.

Fourth, competency is, in large part, inherently satisfied by the elements required to establish an excited utterance.[10]
That a witness have personal knowledge of that which he testifies, Evid. R. 602, is accounted for by part four of th Potter test, requiring “that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.” Potter, supra, paragraph two of the syllabus.

To be competent, a witness must

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appreciate the duty to tell the truth and possess the ability to recall accurately. These requirements are not relevant to the admissibility of an excited utterance because an excited utterance is made while the declarant is dominated by the excitement of the event and before there is opportunity to reflect and fabricate statements relating to the event. The trustworthiness of the declaration (as being what the declarant actually believes to be true) derives from the lack of opportunity to fabricate, not the moral character or maturity of the declarant.[11] Similarly, the declarant’s ability to recall is not an issue because of the requirement that the declaration be contemporaneous with its exciting cause or made while that cause dominates the declarant’s thoughts. The credibility and weight of the declarations will, of course, still be judged by the fact-finder.

Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for resentencing in accordance with law.

Judgment reversed and cause remanded.

MOYER, C.J., SWEENEY, LOCHER, HOLMES and DOUGLAS, JJ., concur.

WRIGHT, J., dissents.

WRIGHT, J., dissenting.

While I do not contest the propositions of law announced in the syllabus today, I must express my reluctant dissent. My reticence is not premised upon the strength of the majority opinion or the apparent unpopularity of the result announced by the court of appeals. Instead, it is based upon a genuine concern that my remarks may highlight the tortured application of the hearsay exception found in this case.

For better or worse, this court does not merely write for the result achieved today. A more important function of any court of last resort is that it write for the many cases that will be tried on the morrow. With that maxim in mind, I fear the majority opinion has done the bench and bar a disservice.

The rights to confront one’s accuser by way of cross-examination and effective counsel are at the very cornerstone of our Anglo-American system of jurisprudence. These rights are firmly imbedded in our Constitution. Hearsay testimony is generally not admissible because the declarant cannot be confronted or cross-examined. We admit some forms of hearsay, however, because of their inherent reliability. One of these exceptions quite properly applies to a spontaneous or excited utterance.

The case law — until now — urges the greatest of caution with respect to this sort of testimony. The exception applicable to an excited utterance should only be applied where:

(1) there is a statement made relating to a startling event or condition; AND

(2) the declarant makes the statement while under the stress of excitement caused by the event or condition.

The Staff Note to Evid. R. 803(2)

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provides: “To qualify as an excited utterance consideration must be given to (a) the lapse of time between the event and the declaration, (b) the mental and physical condition of the declarant, (c) the nature of the statement and (d) the influence of intervening circumstances.”

In their zeal to overrule the court of appeals and affirm appellee’s convictions, my brethren have cited several opinions of this court and of our sundry courts of appeals. None of the cases cited, however, is dispositive. Moreover, many of the cases in the collection of opinions contained in Annotation, Admissibility, as Part of Res Gestae, of Accusatory Utterances Made by Homicide Victim after Act (1965), 4 A.L.R. 3d 149, cited by the majority, contradict the result achieved today.[12]

The majority cites Stough v. Indus. Comm. (1944), 142 Ohio St. 446, 27 O.O. 378, 52 N.E.2d 992, for the proposition that a statement is not required to be exactly simultaneous with the fact in controversy for it to be admissible. If the majority would have read further, however, it would have found tha Stough actually supports a view directly contrary to what the majority has imposed. In Stough, the decedent had inhaled toxic gases while at work. Later that day, he became sick at home, and began to vomit. His wife asked why he was sick and he replied, “I got too much gas.” Stough, supra, at 453, 27 O.O. at 382, 52 N.E.2d at 997. This court ruled the statement was not admissible because the statement was “made in response to questions.” Id. We noted “his answers amounted only to the narration of a past transaction and were inadmissible as part of the res gestae, and that the Court of Appeals was correct in so holding.”[13] Id.

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In the case before us, a not insubstantial period of time passed between the alleged attack and the time the statement was made — fifteen hours. I agree with the majority that a period of unconsciousness does not necessarily preclude the admissibility of hearsay testimony under the excited utterance exception. Determination of admissibility, however, can only be made after careful scrutiny of the totality of the circumstances. Otherwise, substantial due process rights could be denied.

The direct examination of Polly Partin reveals Tangy’s first statement, “[Y]ou know he hurt me,” was spontaneous. Partin then asked several seemingly uncoercive questions. Further examination of Partin’s testimony, however, reveals her questioning did more than “facilitate” Tangy’s expressions. Partin admits, on direct examination, that “it was sometime [sic] before Tangy could even — she didn’t give me a name for sometime [sic].” (Emphasis added.) The fact Tangy would not reveal the name “for some time” surely indicates Partin was attempting to coax Tangy into talking, and convince her it was all right to identify the assailant. Hence, appellee’s identification was the end product of intensive, albeit gentle, interrogation. As in Stough, I would find the questioned testimony here was not made while under the stress of excitement caused by the event, for such is plainly the state of record on which the court of appeals ordered a new trial.

Today’s holding correctly cites Professor Wigmore to the effect that the hearsay rule is inapplicable to testimony in a situation where an “external circumstance of physical shock * * * may be produced which stills the reflective faculties and removes their control.” (Emphasis added.) 6 Wigmore, Evidence (Chadbourn Rev. 1976) 195, Section 1747. Such testimony is, of course, admissible on the theory that such a response “made under the immediate and uncontrolled domination of the senses” (emphasis added) (id.) is particularly trustworthy. Nevertheless, it is difficult to conceive how one could seriously suggest that a series of questions to a five-year-old child can properly last over “some time” and yet can fall within Professor Wigmore’s carefully crafted definition and the applicable case law on this subject.

Accordingly, I would affirm the court of appeals and accord appellee a new trial premised on procedural due process protections which are incorporated into the Rules of Evidence.

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