Opinion
66503-1-I
05-29-2012
STATE OF WASHINGTON, Respondent, v. IRA WASHINGTON, Appellant.
UNPUBLISHED OPINION
Spearman, A.C.J.
Ira Washington was convicted of felony violation of a no-contact order which prohibited Washington from contacting or coming within 500 feet of Felicia Kirkland. At trial, a redacted recording of the 911 call that summoned officers to the Federal Way home where they found Washington with Kirkland was admitted under the excited utterance exception to the hearsay rule. Washington's only argument on appeal is that there was no evidence of a startling event and the admission of the tape was therefore error. Because the record corroborates the startling event, we reject Washington's argument and affirm.
FACTS
On November 17, 2006, the superior court entered a domestic violence no-contact order prohibiting Washington from contacting or coming within 500 feet of Kirkland, her school, her workplace, or her residence. This order did not expire until November 17, 2011.
On February 24, 2010 at 1:46 a.m., a woman called 911 requesting immediate assistance at an address in Federal Way. The caller reported a domestic disturbance and told the operator that she had been beaten up. Officers Douglas Laird and Steven Olson went to the address. When they arrived, Olson recognized a car he had seen Washington in earlier that evening. Olson saw Kirkland running out of the house, frantically yelling "He's in there. Get him." Olson and Laird found Washington on the back deck and took him into custody.
Olson recognized Kirkland because he had spent several hours fingerprinting her one week earlier during an unrelated incident. Additionally, Olson had encountered and spoke to Kirkland at an apartment complex several hours before the 911 telephone call, on the evening of February 23. During that conversation, Kirkland appeared to acknowledge she was the person Olsen had fingerprinted a week earlier. While he was talking with Kirkland, Olsen saw Washington sitting inside a car about five to ten feet away.
The officers arrested Washington. After his arrest, Kirkland became uncooperative and neither she nor any of the other people in the house identified themselves to the officers or offered a statement.
The State charged Washington with felony violation of a court order. Pretrial, the State moved to admit the 911 tape for the purpose of establishing Kirkland's presence at the house. The State argued Kirkland's statements on the tape were admissible as excited utterances. Washington opposed the motion, arguing the tape was irrelevant and prejudicial. The court admitted the tape as an excited utterance on the condition that the State redact the portion where the caller states that she was beaten up.
At trial, Kirkland claimed she was not the person at the house. She testified she is often mistaken for Washington's girlfriend, Avalina Fortson. Likewise, Fortson testified she was the person at the home with Washington, not Kirkland, although she denied calling 911. Fortson also testified she was the person who spoke with a police officer at the apartments on the evening of February 23. The State played the redacted 911 tape at trial. The jury convicted Washington as charged, and he appeals.
DISCUSSION
On appeal, Washington argues only that it was error to admit the 911 tape because there was neither direct nor sufficient corroborating circumstantial evidence of a startling event. We disagree with Washington for the reasons described herein, and affirm.
We review a trial court's decision to admit a hearsay statement under the excited utterance exception for abuse of discretion. State v. Young, 160 Wn.2d 799, 806, 161 P.3d 967 (2007). Under ER 803(a)(2) a hearsay statement is admissible as an excited utterance if it is 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."
Three conditions must be met for a hearsay statement to be admissible under this exception: "(1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was still under the stress of startling event; and (3) the statement must relate to the startling event or condition." State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997), citing State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)). Washington argues that the first condition was not met.
It is undisputed that there is no direct evidence of the alleged startling event, that Kirkland had been threatened and beaten up. The issue is whether there is sufficient circumstantial evidence corroborating the alleged event to permit admission of Kirkland's statements as excited utterances. In Young, 160 Wn.2d at 806, the Washington Supreme Court addressed the question of what quantum of evidence is sufficient to corroborate the occurrence of a startling event. The court held that while "the bare words of the utterance" alone are insufficient, circumstantial evidence derived from the "declarant's behavior and the statement's context" may satisfy the minimum necessary to corroborate the occurrence of a startling event. Id. at 809, 812.
In Young, the declarant, 11 year old K.L., told several adult neighbors that Young had molested her, although she later recanted her statement and testified at trial that she had lied at the time. Id. at 801-804. The trial court heard pretrial testimony regarding K.L.'s behavior, appearance and condition and concluded that this along with the fact that she came directly from her own home, across the street, corroborated that this was an excited utterance. Id. at 818-819. The supreme court held that the admissibility of K.L.'s statements based on this evidence alone would be a "close question, " but found that additional evidence presented at trial provided "ample circumstantial evidence" to independently corroborate that a startling event occurred. Id. at 819.
Unlike the situation in Young, here, there is no additional trial evidence to corroborate the startling event. Thus, we must decide the "close question" of whether evidence of Kirkland's behavior at the time the statements were made and the context of those statements, is sufficient. We conclude that it is. During the 911 call, Kirkland screamed and sounded very agitated and fearful. She told the operator that she needs the police "immediately." In addition, when the police arrived, within nine minutes of the call, Kirkland came out of the house, frantic, and blurted out, "He's in there. Get him." This fearful behavior, along with the statement's context as a 911 call, independently corroborates the occurrence of the startling event. We reject Washington's argument on this issue.
Statement of Additional Grounds
Washington raises a number of issues in his statement of additional grounds, none of which have merit. Washington first takes issue with the police officers' failure to request identification of the women at the house and ask sufficient questions during their investigation. Essentially, Washington contends that the evidence is insufficient to establish that the woman in the house was Felicia Kirkland, the protected party in the no-contact order at issue in this case. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could find the essential elements of a crime beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Officer Olson testified at trial that he observed Washington within 500 feet of Kirkland in violation of a valid no contact order. He further testified that he recognized Kirkland from his previous contact with her a week before and earlier the same day. Although Kirkland and Avalina Fortson disputed the officer's identification, this is a credibility issue the resolution of which lies solely within the province of the jury and which we will not disturb on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility determinations are for the trier of fact and cannot be reviewed on appeal). The evidence was sufficient to support Washington's conviction.
Next, Washington argues that the prosecutor told the jury they could not be hung. He offers no citation to the record for this claim, and our reading of the prosecutor's closing statement, where she carefully discusses the jury instructions, shows that this comment was not made.
Finally, Washington claims that all of the jurors expressed the view that they already believed that he was guilty during voir dire, and that defense counsel was ineffective for accidentally stating that the defendant was guilty in opening argument. Washington did not designate for review, however, voir dire or opening statements, and as such, we cannot review his arguments. Bulzomi v. Dep't of Labor & Indus., 72 Wn.App. 522, 525, 864 P.2d 966 (1994) (insufficient record on appeal precludes review); Olmsted v. Mulder, 72 Wn.App. 169, 183, 863 P.2d 1355 (1993) (failure to designate relevant portions of the record precludes review).
Affirmed.