Opinion
No. 31655-2-II.
Filed: April 11, 2006.
Appeal from Superior Court of Clark County. Docket No: 03-1-02319-1. Judgment or order under review. Date filed: 03/17/2004. Judge signing: Hon. Robert L. Harris.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin, PO Box 5000, Vancouver, WA 98666-5000.
UNPUBLISHED OPINION
Sokchea May Pen appeals his second degree domestic violence assault, unlawful possession of a firearm, and reckless endangerment convictions. At the time of Pen's arrest, his live-in girlfriend told deputies that Pen had pointed a gun at her and threatened to kill her. The girlfriend denied this at trial. The trial court allowed the girlfriend's written domestic violence victim statement to be entered into evidence and allowed deputies to testify about what the girlfriend said. Pen claims this was error. We hold that any error in admitting the written victim statement was harmless and that the police officers' statements were properly admitted. We affirm.
FACTS
Pen lived with his girlfriend, Stephanie Crawford. He and Crawford had an eight-month-old son together, and Crawford's two daughters, ages five and seven, lived with them as well.
In the early morning of November 14, 2003, Crawford made three short phone calls to 911 at 5:50, 5:52, and 5:58 a.m. She spoke softly, saying she did not want Pen to know she called, and hung up quickly. She also said she had been punched and was being threatened.
Clark County Sheriff's deputies arrived at the house at approximately 5:55 a.m. Pen opened the front door while the deputies were still a few feet away, but they were able to see the butt of a semiautomatic pistol sticking out of Pen's coat pocket. As Pen tried to close the door, the deputies forced their way in, handcuffed him, and seized the gun.
Deputy Taylor immediately searched the house for anyone else. He found Crawford holding the baby in the back bedroom. Taylor testified that `she immediately asked me did I get him, `because he tried to kill me and my baby.' . . . She was very upset at that point, began crying and repeated that, `he had tried to kill me and my baby." Report of Proceedings (RP) (03/11/04) at 168. Crawford told Taylor that she and Pen argued and that he hit her in the eye. Crawford had then retreated to the back bedroom while Pen retrieved a gun from the garage. Pen came into the bedroom, pointed the gun at Crawford, and told her if he was going to prison he would make it worth it. She said, `He told me he was going to kill me and my baby and he was pointing the gun at me.' RP (03/11/04) at 172. Taylor testified that Crawford was so upset it took a while to get her statement.
Deputies gave Crawford a pamphlet with information on domestic violence and a domestic violence victim statement (DV statement) form for her to fill out. Deputy Orr, who watched Crawford fill out the form, testified that the form is standard and is given out during any domestic violence call, especially when there is an allegation of physical assault. Crawford asked for additional forms because she needed more space to write. The deputies noticed that Crawford had a mark under her right eye.
Pen was charged with second degree assault of Crawford, unlawful possession of a firearm (due to his having been previously convicted of a felony), and reckless endangerment of the baby.
At trial, Crawford's testimony was much different from her DV statement. She stated that Pen came home intoxicated at about 3:00 a.m. She left the house to get some groceries, and when she came home a few minutes later, Pen had placed their son in his truck and was about to drive away. Crawford, thinking Pen was intoxicated, tried to convince him not to drive. An altercation followed, and Pen hit Crawford as she reached into his truck to try to turn off the ignition. Crawford testified that Pen might not have hit her on purpose and that she did not think his hand was closed.
According to Crawford's testimony, she then took the baby from the truck and went into the house with Pen. The girls were still sleeping in the bedroom. Crawford said she did not feel threatened, but she called 911 because she was worried Pen would try to drive while intoxicated.
Crawford denied she saw Pen with a gun that morning and she denied he pointed the gun at her or threatened to kill her. Crawford remembered writing her statement but claimed that the officers pressured her and told her what to write.
The trial court admitted Crawford's DV statement, finding it was a `Smith affidavit' admissible under ER 801(d). The court allowed Deputy Taylor to testify about what Crawford told him when he first found her because these statements were `classic' excited utterances. RP (03/10/04) at 158.
State v. Smith, 97 Wn.2d 856, 861, 651 P.2d 207 (1982).
The jury convicted Pen on all counts and found by special verdicts that he was armed with a firearm and that Crawford was a household member.
ANALYSIS
I. Admissibility of Crawford's Domestic Violence Victim Statement
Pen claims the trial court should not have admitted Crawford's Smith affidavit because the State failed to demonstrate three of the four Smith factors. The State concedes that `some of the factors may be lacking.' Br. of Resp't at 7. Even though the State did not brief this issue, we may affirm the trial court on any grounds the record adequately supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
A. Standard of review
We review for abuse of discretion the trial court's decision to admit evidence. State v. Nieto, 119 Wn. App. 157, 161, 79 P.3d 473 (2003) (citing State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997)). If the trial court based its evidentiary ruling on an incomplete legal analysis or a misapprehension of legal issues, the ruling may be an abuse of discretion. City of Kennewick v. Day, 142 Wn.2d 1, 15, 11 P.3d 304 (2000); Nieto, 119 Wn. App. at 161. Here, the trial court admitted the DV statement under ER 801(d) as a sworn Smith affidavit.
B. Hearsay rule
Generally, the rule against hearsay excludes an out of court statement, including statements contained in documents. ER 801 (a)-(c), 802. An exception exists for a witness's prior inconsistent statements. ER 801(d). A prior inconsistent statement is not hearsay and may be admitted as substantive evidence if: (1) the declarant testified at trial and was subject to cross-examination, (2) the statement was inconsistent with the declarant's testimony, (3) it was given under oath subject to penalty of perjury, and (4) it was provided at a trial, hearing, or other proceeding, or in a deposition. ER 801(d)(1)(i); Nieto, 119 Wn. App. at 161. The proponent of the statement's admissibility bears the burden of proving each of these elements. Nieto, 119 Wn. App. at 161.
Here, Crawford was testifying at trial, subject to cross-examination, and the DV statement was inconsistent with her testimony at trial. The more problematic issues in determining whether the statement complied with ER 801(d) are whether the DV statement was given `under oath' and whether this police investigation counted as a `proceeding.' As we explain in greater detail below, we cannot determine from this record whether the circumstances under which Crawford gave her statement satisfy ER 801(d) because the trial court performed an incomplete legal analysis. We do not reach the issue of whether she gave her statement under oath.
Crawford testified that she did not notice the penalty of perjury language on the form and no officer remembered pointing it out to her.
Washington's supreme court has declined to adopt a bright line rule as to whether a sworn statement given during a police interrogation would be admissible as a statement provided during a `proceeding.' State v. Smith, 97 Wn.2d 856, 860-61, 651 P.2d 207 (1982). `We do not interpret the rule to always exclude or always admit such affidavits. The purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key.' Smith, 97 Wn.2d at 861.
The Smith court, concerned with the reliability of statements witnesses provided to the police, considered several factors in assessing the prior inconsistent statement: (1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross-examination when giving the subsequent inconsistent statement. State v. Nelson, 74 Wn. App. 380, 387, 874 P.2d 170 (1994) (citing Smith, 97 Wn.2d at 861-63).
The trial court never analyzed the Smith factors but, rather, admitted the statement because it was signed and contained the `penalty of perjury' language. RP (03/10/04) at 95-96. Had it considered the factors, the court might have determined that the statement was sufficiently reliable. However, without those findings, we cannot say that Crawford's statement to police had sufficient indicia of reliability to be admitted. See Nieto, 119 Wn. App. at 162-63 (the court must analyze the facts of the case and the purposes of the hearsay rule in determining whether a prior statement provides minimal guarantees of truthfulness). However, even if the DV statement was not admissible under Smith, any error in admitting the statement was harmless.
C. Harmless error
A reviewing court will not reverse due to an error in admitting evidence where the error does not prejudice the defendant. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004) (citing State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). Where the error is from a violation of an evidentiary rule rather than a constitutional mandate, courts do not apply the more stringent `harmless error beyond a reasonable doubt' standard. Thomas, 150 Wn.2d at 871. Rather, error is not prejudicial unless, within reasonable probabilities, the trial's outcome would have differed had the error not occurred. Thomas, 150 Wn.2d at 871 (citing State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). In determining the effect of an irregularity at trial, an appellate court should examine (1) its seriousness, (2) whether it involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it. Bourgeois, 133 Wn.2d at 409. In this case, the information in the DV statement was almost entirely cumulative. Crawford testified about her fight with Pen and that he hit her in the eye. The deputies testified about Crawford's verbal report that Pen pointed a gun at her and threatened to shoot her. The DV statement does not add anything material. Therefore, the statement did not reasonably affect the trial's outcome, and admitting it was harmless error.
We note that the statement was admissible as a prior inconsistent statement for impeachment purposes but not as substantive evidence. State v. Hoffman, 116 Wn.2d 51, 76, 804 P.2d 577 (1991).
II. Hearsay exception for Crawford's excited utterances
Pen objects to the trial court admitting Crawford's statements because he says the conditions for an excited utterance were not present. Because both Pen and Crawford testified that Pen never threatened Crawford with a gun, Pen says the alleged `startling event' never took place. Br. of Appellant at 16-17. Furthermore, Crawford testified she was upset to learn from deputies that Pen even had a gun. Pen claims this was the only `startling event' Crawford experienced, so the court should not have allowed testimony as to any other startling experience. Br. of Appellant at 17.
When a trial court admits a statement under a hearsay exception, we review that decision for abuse of discretion. State v. Woods, 143 Wn.2d 561, 595, 23 P.3d 1046 (2001).
An out of court statement offered to prove the truth of the matter asserted is admissible at trial if the hearsay statement relates to `a startling event or condition' and was `made while the declarant was under the stress of excitement caused by the event or condition.' ER 803(a)(2). Three closely connected requirements must be satisfied in order for a hearsay statement to qualify as 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 or excitement caused by the startling event or condition, and (3) the statement must relate to the startling event or condition. Woods, 143 Wn.2d at 597 (citing State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)). Often, the key determination 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. Woods, 143 Wn.2d at 597 (citing State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992)). More succinctly, the key is spontaneity. State v. Briscoeray, 95 Wn. App. 167, 173, 974 P.2d 912 (1999) (citing Chapin, 118 Wn.2d at 688).
A later recantation does not disqualify the statement as an excited utterance. State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000); Briscoeray, 95 Wn. App. at 173. [W]here there is substantial evidence that the witness did not have the time or opportunity to fabricate a story before making the statements at issue, the statements may properly fall within the excited utterance exception. If the witness later recants, the trial court does not err by weighing the witness's credibility against the evidence indicating that the statements were spontaneous and reliable.
Briscoeray, 95 Wn. App. at 172-73. In Briscoeray, the trial court allowed testimony about statements the victim made within minutes of the attack, even though the victim later denied that the attack took place. Briscoeray, 95 Wn. App. at 174-75. Division One of this court upheld the decision, finding that the short amount of time that passed between the event and the utterances, as well as the victim's emotional state during that time, suggested that her statements were spontaneous. Briscoeray, 95 Wn. App. at 174.
In this case, we uphold the trial court's decision to admit the statements as excited utterances. The trial court had testimony that Crawford had an upsetting experience and that she was still upset when she told deputies a few minutes later what had happened. Therefore, the trial court did not abuse its discretion in finding that all three excited utterance elements were met. Even though Crawford later denied making the statements, the court properly allowed the jury to hear the conflicting testimony and determine which witnesses to believe.
Because Crawford testified at trial, Pen had the opportunity to cross examine her. Therefore, the confrontation issues raised in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) are not implicated.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., JJ., concur.