Opinion
No. 24622-1-III.
October 26, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-02233-8, Salvatore F. Cozza, J., entered October 13, 2005.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA, 99206-6827.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
Andrew J. Metts III, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA, 99260-0270.
Affirmed by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Brown, J.
David Bullard Middleton appeals his convictions of second degree assault and unlawful imprisonment. He contends the trial court's admission of his wife's statements to the police violated his Sixth Amendment right to confrontation and the court erred by admitting those statements as excited utterances. He also contends the court erred by conducting a bench trial without entering written findings of fact and conclusions of law. We affirm.
On May 25, 2005, Deputy Jason C. Karnitz was dispatched to an apartment complex to investigate a reported incident of domestic violence. When he arrived at the apartment, he saw that the victim, Holly Middleton, was crying and visibly shaken. Ms. Middleton had abrasions on the inside of her arms and a small laceration on her left arm. She also had injuries on her chest.
Ms. Middleton told Deputy Karnitz that she and her husband were having an argument. She wanted to leave, but Mr. Middleton had taken her purse. She tried to get out through the back door when he hit her on the left side of the head. She then ran out the front door. As she was running up the steps leading to a parking lot, Mr. Middleton grabbed her. She grabbed the railing, while he tried to pull her back into the apartment.
Mr. Middleton was charged with unlawful imprisonment and second degree assault or, in the alternative, third degree assault. On September 29, 2005, the case proceeded to bench trial.
Melody McKinney testified that she was on her front porch with her daughter and a friend when she saw Ms. Middleton run out of her apartment, shouting, "Help me! Call the police! Call 9-1-1!" Report of Proceedings (RP) (Sept. 29, 2005) at 47. She then saw Mr. Middleton pulling on Ms. Middleton. After he left, Ms. McKinney said Ms. Middleton was visibly shaken and crying.
Megan M. Spain saw the struggle between the Middletons as she was parking her car at the apartment complex. She saw Ms. Middleton with her arms wrapped around the banister while Mr. Middleton was pulling her. Ms. Spain heard Ms. Middleton scream and shout. Ms. Spain told Mr. Middleton to stop and Ms. Middleton ran into a neighbor's apartment. Mr. Middleton tried to chase after Ms. Middleton, but stopped and went back into their apartment, where he grabbed her purse and keys and left in her car. Ms. Spain said Ms. Middleton was crying and shaking after he left.
Ms. Middleton did not testify. Deputy Karnitz testified regarding her statements concerning the incident. Defense counsel objected to the deputy's testimony, arguing the statements were not excited utterances. The court admitted the statements as excited utterances.
The court found Mr. Middleton guilty of second degree assault and unlawful imprisonment. On March 16, 2006, the court entered findings of fact and conclusions of law. On April 27, the court entered amended findings and conclusions. This appeal follows.
Mr. Middleton contends the trial court's admission of his wife's statements to the police violated the confrontation clause of the Sixth Amendment. We review alleged violations of the confrontation clause de novo. State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005, review denied, 147 Wn.2d 1025 (2002).
The Sixth Amendment confrontation clause guarantees that a person accused of a crime "shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that, under the confrontation clause, courts may not admit testimonial statements of an absent witness unless the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the adverse witness. Although the Supreme Court did not define "testimonial," the court noted that "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial" are testimonial. Id. at 52.
Here, Ms. Middleton did not testify at trial and there is no evidence in the record that Mr. Middleton had an opportunity to cross-examine her. Her statements were out-of-court and prompted by Deputy Karnitz's questioning. Thus, even assuming that her statements to the deputy were testimonial, we must next examine whether any error in admitting the evidence was harmless beyond a reasonable doubt. State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005), aff'd, Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Washington courts apply the "overwhelming untainted evidence test" as the standard for harmless error. Id. at 305. In applying this test, we review the properly admitted evidence to determine whether it necessarily points to Mr. Middleton's guilt. State v. Palomo, 113 Wn.2d 789, 799, 783 P.2d 575 (1989), cert. denied, 498 U.S. 826 (1990). A confrontation clause error is harmless if the evidence is overwhelming and the violation is so insignificant that we are persuaded beyond a reasonable doubt it did not affect the verdict. State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002).
The testimony by Deputy Karnitz, while significant, was merely one piece of the State's case. The testimony of the other witnesses and the photographs of Ms. Middleton's injuries cumulatively corroborated Deputy Karnitz's testimony that Mr. Middleton assaulted and unlawfully imprisoned his wife. Any error was therefore harmless.
Mr. Middleton next contends the statements to Deputy Karnitz were improperly admitted in any event, because they were not excited utterances. We review a trial court's decision to admit an excited utterance for abuse of discretion. State v. Woods, 143 Wn.2d 561, 595, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
"The excited utterance exception is based upon the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication." State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). A statement "qualifies as an excited utterance . . . if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition." Id. Whether the declarant makes the statements while still under the stress of an event is a factual determination. State v. Sims, 77 Wn. App. 236, 238, 890 P.2d 521 (1995). Often, the key factor is "`whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.'" State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).
Although spontaneity is critical, "[t]he statement need not be completely spontaneous and may be in response to a question." State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000). "A declarant's ability to provide detailed information about the event . . . tends to show a calm, reflective state of mind." State v. Ramires, 109 Wn. App. 749, 758, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002). The lapse of time between the startling event and the declaration is also a factor, but the lapse of time alone is not critical or dispositive. Id. "The longer the time interval, [however,] the greater the need for proof that the declarant did not actually engage in reflective thought." Id.
The incident experienced by Ms. Middleton was indeed a startling event. Deputy Karnitz, Ms. McKinney, and Ms. Spain all testified that Ms. Middleton was crying and shaking after her husband left. The court found her statements were made within 10 or 15 minutes after the event. In these circumstances, Ms. Middleton was still under the stress of excitement of the events when she made her statements to Deputy Karnitz. The court did not err by admitting the hearsay statements under the excited utterance exception.
Mr. Middleton also contends the court erred by conducting a bench trial without entering written findings of fact and conclusions of law. A trial court must enter findings of fact and conclusions of law in a case tried without a jury. CrR 6.1(d).
But the trial court entered findings of fact and conclusions of law on March 16, 2006. They were amended on April 27, 2006. Mr. Middleton has made no showing of actual prejudice resulting from their late entry. State v. Royal, 122 Wn.2d 413, 423, 858 P.2d 259 (1993). Accordingly, reversal or remand on this ground is unwarranted.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and BROWN, J., concur.