Opinion
I.D. No. 0001017369
Submitted: April 6, 2001
Decided: July 31, 2001
Upon Defendant's Motion for Judgment of Acquittal and/or Motion For a New Trial — DENIED.
Edmund D. Lyons, Jr., Esquire, The Lyons Law Firm, 1526 Gilpin Avenue, P.O. Box 579, Wilmington, Delaware, 19899. Attorney for Defendant.
William George, Jr., Esquire, Carvel State Office Building, 820 N. French Street, 7th Floor, Wilmington, Delaware, 19801. Deputy Attorney General for the State.
ORDER
On September 8, 2001 a jury convicted Donna Kester on two counts of criminally negligent homicide. Kester was convicted for driving her tractor trailer into the back of an SUV that was stopped for a red light at a major intersection. Kester's criminal negligence primarily concerned her failure to slow down or otherwise take any action to avoid the collision.
The major issue at trial was whether the State proved that Kester was driving the truck. At trial, the State relied on circumstantial evidence and a hearsay, excited utterance in order to establish that Kester was the driver. Kester objected to the excited utterance's admissibility. She asked for a directed verdict after the State rested and again at the close of evidence.
After the jury returned its guilty verdict, Kester filed a timely post-trial motion re-challenging the admissibility of the excited utterance and the sufficiency of the evidence that Kester was the driver.
I.
After midnight during the morning of May 24, 1999 Delaware State Police Corporal Joseph McGrory was on routine patrol not far from Glasgow, Delaware. As he drove his police cruiser westbound on U.S. Route 40 at the intersection with Route 72, McGrory realized that something in the distance was on fire. McGrory testified at Kester's trial that "the whole sky was lit up." At about the same time, McGrory heard "RECOM" dispatch a police car to the scene of an accident that had just been reported where McGrory was heading. Because he was close by, McGrory activated his emergency equipment and in 30 to 40 seconds he came upon the scene of a horrific traffic accident. A red, "Jimmy" SUV was on its roof, smoking. Nearby, a tractor trailer was on fire, its cab engulfed in flames.
As McGrory got out of his police cruiser, a man ran up to him. According to McGrory, the man appeared to be "a nervous wreck, a panic." The man said "something to the effect like "the tractor trailer driver is over there."' The man pointed to a group of people who were kneeling next to an injured woman sitting by the road. When McGrory walked over to her, he could see that the woman was in shock. Her eyes were open. She was crying and hysterical. She also was severely burned. At her trial, McGrory identified the injured woman as Donna Kester.
Although one witness testified that it took the police ten minutes to arrive at the scene, the overwhelming evidence establishes that McGrory arrived less than three minutes after the accident. Witnesses to the crash testified that they made "911" calls on their cellular telephones almost immediately after the accident. McGrory heard the dispatcher's initial broadcast and he arrived at the scene as soon as a minute after that. He was confronted by the bystander within 30 seconds after the officer's arrival. The most reasonable, conservative estimate is that an agitated bystander identified Kester as the tractor trailer's driver within three minutes of the collision.
At this point, the details of the collision, including its horror, mostly are uncontroverted. The SUV was completely stopped in the left, thru lane of Route 896 at its intersection with U.S. Route 40. There are five lanes in the direction that the SUV and Kester's tractor trailer were heading. Each lane was controlled by a traffic light and it is undisputed that all five lights had been red for as long as 40 seconds before Kester arrived. Moreover, several cars were stopped at the traffic lights and their rear lights also would have been visible to Kester as she approached.
While the State's accident reconstructionist was unable to determine Kester's speed and he was unable to attribute the accident to how fast she was moving, eyewitnesses testified consistently that the truck was going at around "highway speed" when it rear-ended the SUV. It also is undisputed that the impact of the tractor trailer smashing into the SUV's rear was so great, the SUV flipped into the air, landed on its roof and its gas tank exploded immediately. The SUV's front seat occupants were able to escape the flames. The two men sitting in the SUV's back seat were trapped and they burned to death.
The impact of the collision also caused one of the tractor trailer's "saddle bag" gas tanks to explode. Significantly, as mentioned, fire engulfed the truck's cab. While none of the witnesses who testified was able to identify the tractor trailer's driver, the only injured person found at the scene, besides the SUV's occupants, was Kester. Neither side presented any evidence that anyone besides Donna Kester was in the truck before the accident.
II.
a. Excited Utterance Hearsay Rule Exception
The foundational requirements to qualify as "excited utterances" are:
D.R.E. 803(2): Excited Utterance. 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.
(1) the excitement of the declarant must have been precipitated by a [startling] event; (2) the statement being offered as evidence must have been made during the time period while the excitement of the event was continuing; and (3) the statement must be related to the startling event.
Culp v. State, Del. Supr., 766 A.2d 486, 490 (2001) (citing Gannon v. State, Del. Supr., 704 A.2d 272, 274 (1998).
As discussed below, a tractor trailer plowing into an occupied vehicle and the resulting, instantaneous explosions and fire is a paradigm for a startling event. Moreover, the statement clearly was related to the event. While a few minutes elapsed between the event and the utterance, the declarant was visibly distraught when he ran up to the arriving police officer.
b. Confrontation Cause Excited Utterance Exception
The Delaware Supreme Court has held that admission of a spontaneous declaration that qualifies as an "excited utterance" does not violate a defendant's right of confrontation under either the United States or Delaware Constitution. The gist of the Supreme Court's holding is that properly admitted excited utterances are spontaneous by definition and they are inherently reliable.
Gannon v. State, 704 A.2d at 273 (witness's testimony about his daughter's statements on telephone were properly admitted under excited utterance exception to hearsay rule). See also Williamson v. State, Del. Supr., No. 339, 1997, per curiam, (Feb. 25, 1998) (ORDER) (excited utterances properly admitted, and did not offend confrontation clause, where victim could not be located to testify at trial).
c. Insufficiency of Evidence
The State is not required to disprove every possible innocent explanation in purely circumstantial evidence cases." "[T]he fact that most of the State's evidence [is] circumstantial is irrelevant." In a jury trial, the jury is responsible for determining true facts and drawing any inferences from the proven facts. Under Delaware law, the standard for reviewing an insufficiency of the evidence claim is:
Hoey v. State, Del. Supr., 689 A.2d 1177, 1181 (1997) (citing Williams v. State, Del. Supr., 539 A.2d 164, 167, cert. denied, 488 U.S. 969 (1988)).
Id.
Cooper v. State, Del. Supr., No. 294, 1995, Holland, J. (May 31, 1996), Order at *3 (citing Chao v. State, Del. Supr., 604 A.2d 1351, 1363 (1992)).
whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt.
Robertson v. State, Del. Supr., 596 A.2d 1345, 1355 (1991). See also Skinner v. State, Del. Supr., 575 A.2d 1108, 1121 (1990); Shirley v. State, Del. Supr., 570 A.2d 1159, 1170 (1990).
When the court considers insufficiency of the evidence claims, it does not distinguish between direct and circumstantial evidence."
Shipley, 570 A.2d at 1170 (citing Williams, 539 A.2d at 167).
III.
a. Quantum of Evidence PresentedGenerally, the court encourages the State to present its case economically. It is unnecessary to litigate and relitigate the obvious. The court appreciates the prosecutor who is willing to prove the State's case only once. Considering this case's seriousness, however, the court wonders why more evidence was not presented. The truck obviously was a commercial vehicle and, presumably, the State could have obtained business records to prove further that Kester was the driver and avoid post-trial motion practice. Nevertheless, as discussed below, the court is satisfied that the State's proof was adequate.
Even without the bystander's excited utterance, it is difficult to find a reasonable doubt that Kester was the tractor trailer's driver. The only explanation for her serious injuries is that she was an occupant in the tractor trailer's cab. While that leaves the possibility that she merely was a passenger, the idea that the tractor trailer was driven by someone who fled into the night, probably after being burned by flaming fuel, is not supported by the eyewitness accounts and circumstantial evidence. of course, when the anonymous bystander's statement to Corporal McGrory also is taken into account, there clearly is no basis for reasonable doubt that Kester was driving.
b. The Excited Utterance's Admissibility
It is undisputed that the anonymous bystander approached a uniformed police officer within minutes of an event with far more than a startling impact. Three minutes before the bystander approached the police officer, a large, fast moving tractor trailer had plowed into a stopped SUV. The impact was so great, it flipped the SUV onto its roof and the resulting explosion "lit up the sky." Not only that, the SUV exploded with people inside. Two occupants crawled out of their flaming vehicle. Two did not. The tractor trailer also exploded and its occupant was burned severely. When the bystander ran up to the uniformed police officer, the bystander was "a nervous wreck, a panic." It simply is impossible to describe how the collision must have impressed the senses of sight, sound and smell of anyone who was there.
It is possible that the bystander was not a witness and that he did not know what he was talking about. And for some totally unfathomable reason, he chose to run up to a uniformed police officer and identify the injured Kester as the driver. There is no reasonable basis, however, to conclude that the bystander's statement to the police was inaccurate, much less that it was a fabrication.
By far, the most reasonable explanation for the bystander's decision to run over to the arriving police officer and point out the tractor trailer's driver was that the bystander had witnessed the accident and he honestly was trying to point the police officer in the right direction. While other explanations are possible in theory, under the dramatic circumstances that existed when the statement was made, the other explanations are not plausible. Based on the evidence, rather than unsubstantiated conjecture, the only reasonable conclusion is that Kester was the driver.
The court appreciates Kester's inability to confront and cross-examine the excited utterance's declarant. That concern exists, however, whenever an excited utterance is admitted in a criminal trial and the declarant is unavailable for cross-examination. As presented above in Section II, it is well-settled that a properly admitted excited utterance under D.R.E. 803 does not offend the Confrontation Clause.
IV.
For the foregoing reasons, Defendant's February 20, 2001 post-trial Motion for Judgment of Acquittal or New Trial is DENIED.
IT IS SO ORDERED.