Opinion
No. 52383-0-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-08567-5. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. Donald D Haley.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
James Earl Kelly Doc #987904 (Appearing Pro Se).
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Sara Lynn McCulloch, King Co Pros Office, 516 3rd Ave, Seattle, WA 98104-2390.
James Kelly appeals the judgment and sentence entered following his conviction by a jury of assault in the second degree domestic violence. Kelly contends that the trial court erred in admitting the victim's statement to a police officer as an excited utterance. We conclude that the error, if any, was harmless. We also reject the instructional and jury misconduct arguments he raises in his pro se statement of additional grounds for review. We affirm.
FACTS
Kelly was charged with assaulting and unlawfully restraining his girlfriend, Marlene Combs, between November 7-10, 2002. Kelly and Combs were living in the Ontario Hotel in Seattle. There was no phone in the room, and the bathroom was down the hall. Combs testified that during the early part of the day on November 7, 2002, things went rather well. Later, she and Kelly were playing on the bed. When Kelly got her in an uncomfortable position, she bit him on the back to make him let go. Kelly sat up and punched her in the left side with a closed fist. They discussed the situation, and he asked her if she wanted to go to the hospital. She declined because it wasn't bothering her much. The next morning, November 8, she woke up in pain. Kelly drank beer all day. Combs drank one beer about 6 p.m. Combs asked to go to the hospital because her side was hurting badly. Kelly accused her of wanting to go see another man. Combs got up and went to the door, but Kelly snatched her back and pushed her onto the bed and started hitting her in the face with a closed fist. When she again tried to go to the door, he started hitting her again. At some point, she lost consciousness. When she regained consciousness, he apologized for hitting her and didn't hit her again that day.
The next morning, November 9, they got up to do housekeeping jobs they did at the hotel. Kelly did all the work that day because he did not want people to see Combs' face. Combs stayed in the room except when she went next door to do laundry. Kelly came back to the room every 15 to 20 minutes. In the evening, she went to a room on the next floor that belonged to Charley Walker and asked him for a ride. Kelly came to the room, grabbed her by the arm, and pulled her down the stairs to their room. Kelly accused Combs of going to Walker's room to have sex and then repeatedly punched her. Kelly told her that if he couldn't have her, no one could, and then strangled her into unconsciousness.
Combs slept most of the next day, November 10. Kelly was there all day. Other than going to the bathroom, Combs did not leave the room.
The next day, November 11, they had no problems in the morning. About noon, Kelly left to go look for a job. Combs got dressed and left, taking the bus to her mother's home in Tacoma. She had no money, but the bus driver let her ride for free and gave her a transfer. She was exhausted, and her mother suggested she rest and go to the hospital the next day. She slept until the following day. When Combs awoke the next day, November 12, she went to the hospital with her mother. She was treated at the hospital and then returned to her mother's home. A police officer came there, and Combs told him what had happened. The officer took photos of her injuries. Combs identified the photos. Combs testified that the worst of the bruising to her face had healed in the last month, which was approximately three months after the assault. She suffered a fractured rib that continued to make breathing painful and she had bruising up and down her spine and on her shoulders. Dr. Steven Pace treated Combs in the emergency room. Her face was swollen and bruised; she had a fractured left rib; she had bleeding into the conjunctive membrane of her left eye; her bruising was consistent with having been beaten in the last few days; and she had marks on her neck indicating she had been strangled. Combs told him she was in and out of consciousness. Dr. Pace concluded that she lost consciousness on at least one occasion. Combs told Dr. Pace that her boyfriend, James Kelly, assaulted her.
Edith Brown, Combs' mother, testified that when Combs arrived at Brown's apartment, she was scared, shaking, and crying, and said that she had just escaped the hotel where Kelly had been holding her and that he had caused her injuries. Brown observed that Combs had black, swollen eyes and a bruised, swollen face, her neck was black and blue, and she was tender in the rib area. Combs' voice was hoarse, and she said it hurt to talk and swallow. Combs was afraid to leave Brown's apartment for fear Kelly had followed her.
Charley Walker testified that when Combs came to his apartment, he saw her bruised face and bloody eye. He told her he would not give her a ride because he did not want to get involved. When Kelly came to the apartment, Combs hid behind the door, but Kelly grabbed her. Sometime later, Walker saw Kelly. Kelly admitted that `he messed up' and `hit his woman.'
Detective Robert Hannity testified that he was dispatched to Brown's apartment about 9 p.m. on November 12, 2002. Combs had been treated at the hospital earlier that day. Detective Hannity observed that Combs looked like she had been badly beaten. On seeing her injuries, he immediately asked her if she needed medical treatment, even though he knew she had been at the hospital. Detective Hannity observed that Combs was holding her left side in a guarded position and was complaining of pain.
Detective Hannity's interview with Combs lasted for about 1 — hours. He testified that Combs repeatedly began to cry during the interview. As he asked for details, Combs became increasingly upset; she was crying and breathing fast. He had to pause to calm her down and use `de-escalating techniques' to continue.
Defense counsel objected that Detective Hannity should not be permitted to relate what Combs told him because the evidence was hearsay and it did not fall within the excited utterance exception in ER 803(a)(2) for 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.' Counsel noted the extended lapse of time between the assault and the interview, the fact that Combs had already told the story to her mother and Dr. Pace, and that even though Combs was upset, she calmed down and answered the detectives questions. The prosecutor argued that Combs was still under the influence of the startling event when she talked to the detective.
The trial court overruled the objection on the ground that Combs was still suffering from the startling event and the testimony was admissible under the excited utterance exception.
Detective Hannity related Combs' description of the event to him. His testimony as to what Combs told him was consistent with Combs' trial testimony.
Detective Hannity then identified the photos taken of Combs' injuries and described the injuries shown in them, as well as his observations of her injuries. The detective's description was consistent with those of Combs, Brown, and Dr. Pace, although he also described bruising and swelling on her arms and wrists.
The jury found Kelly guilty as charged of assault in the second degree — domestic violence. The jury was unable to reach a unanimous verdict on the unlawful restraint charge, the court declared a mistrial on that offense, and the charge was dismissed.
Kelly appeals.
EXCITED UTTERANCE
Kelly contends that the trial court erred in admitting Combs' statement to Detective Hannity because it does not meet the requirements for an excited utterance: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition. The second factor constitutes the essence of the rule, and the key to it is spontaneity. As the time between the event and the statement lengthens, the opportunity for reflective thought arises and the danger of fabrication increases. Kelly contends that given the significant time lapse between the end of the assault and the interview, which was nearly 72 hours, the fact that Combs had already told her story to others, and the detective's purposeful efforts to keep Combs from getting upset, the statement was not spontaneous.
State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
Chapin, 118 Wn.2d at 687-88.
Chapin, 118 Wn.2d at 688.
We need not determine whether the trial court erred in admitting the hearsay because the error, if any, was harmless. Because Combs testified at trial, there is no confrontation clause issue. A non-constitutional error will be reversed only if there is a reasonable probability that the error affected the verdict.
State v. Owens, 128 Wn.2d 908, 914, 913 P.2d 366 (1996).
Despite Combs' testimony that she suffered a head injury in 1991 that sometimes makes it difficult for her to remember things, Combs' trial testimony was clear and straightforward. She described the sequence of events over several days, clearly differentiating between the times when Kelly beat her and when things `went rather well' and they did household tasks. Other than the addition of a few details about the events, Detective Hannity's testimony as to what Combs told him was entirely consistent with Combs' trial testimony. The jury also heard the testimony of Dr. Pace, Edith Brown, and Charley Walker, which was also consistent with Combs' testimony. There is no reasonable probability that the result of the trial would have been different if the trial court had excluded Detective Hannity's testimony relating Combs' statement to him.
Combs told the detective that she left the hotel wearing only a dress and no underclothes because Kelly had removed the rest of her clothes from the room. In addition, the detective testified that Combs told her Kelly hit her with a wire hanger and that she had marks on her thighs from it. Combs testified that the injuries shown in two photographs were caused when Kelly hit her with a plastic hanger. She initially could not recall when he hit her with the hanger, but then clarified that it was not during this three-day assault and that she had those injuries before the assault in question.
JURY INSTRUCTIONS
In his pro se statement of additional grounds for review, Kelly appears to challenge the trial court's failure to give lesser included or inferior degree instructions. The jury was instructed on the elements of second degree assault, which required the State to prove beyond a reasonable doubt that Kelly intentionally assaulted Combs, that he thereby recklessly inflicted substantial bodily harm on her, and that the acts occurred in Washington. Defense counsel did not object to any of the court's instructions and proposed no instructions. Kelly may not raise the issue for the first time on appeal. Moreover, there was no basis to give a lesser included or inferior degree offense instruction. Kelly's defense was one of general denial, that someone else may have inflicted some of the injuries. There was no evidence that Kelly acted unintentionally. Thus, the evidence did not support an inference that only third degree assault was committed.
State v. Salas, 127 Wn.2d 173, 181-82, 897 P.2d 1246 (1995).
A person is guilty of assault in the third degree if he, under circumstances not amounting to assault in the first or second degree, with criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering. RCW 9A.36.031.
State v. Fernandez-Medina, 141 Wn.2d 448, 454-56, 6 P.3d 1150 (2000) (for an instruction on an inferior degree offense to be proper, the evidence must support an inference that only the inferior degree offense was committed to the exclusion of the charged offense).
JURY MISCONDUCT
Kelly contends that during the second day of trial, the prosecutor brought to defense counsel's attention that Edith Brown and one of the jurors were seen together talking about the trial and that defense counsel asked for a mistrial, but the court denied it. Kelly has not cited any place in the record where the alleged improper contact took place. We have reviewed the record and find nothing to support the claim. Because the claim refers to matters outside the trial record, it cannot be considered but must be raised in a properly supported personal restraint petition.
State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995). See In re Personal Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992).
Affirmed.
COLEMAN, KENNEDY and APPELWICK, JJ.