Salt Lake City v. Hernandez

----ooOoo----

Salt Lake City,
Plaintiff and Appellee,

v.

Carlos Hernandez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000293-CA

F I L E D
March 8, 2001 2001 UT App 64 -----

Third District, Salt Lake Department
The Honorable Robin W. Reese

Attorneys:
L. Monte Sleight, Salt Lake City, for Appellant
Don M. Wrye, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

BILLINGS, Judge:

Defendant appeals his conviction for domestic violence on the ground that the trial court erred in admitting, under the excited utterance exception, hearsay statements made by the alleged victim to a police officer. Rule 803(2) of the Utah Rules of Evidence "recognizes an exception to the usual rule against admitting hearsay for 'statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,' whether or not the declarant is available to testify at trial." West Valley City v. Hutto, 2000 UT App 188,¶12, 5 P.3d 1 (alteration in original) (quoting Utah R. Evid. 803(2)). Utah courts have developed a three-prong test to determine whether a statement qualifies as an excited utterance. "Hearsay statements fall within the excited utterance exception when '"(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 startling event or condition."'" Id. at ¶15 (citations omitted). Factors we consider in determining whether a statement is an excited utterance include "the declarant's age, elapse of time between event and statement, the nature of the event, the apparent emotional state and intensity of emotional reaction, hospitalization, whether the statement was spontaneous or in response to a question, and the declarant's familiarity with his or her surroundings." Id. at ¶16. Based on these factors, a presumption may arise that "'at the time the statements were made, [the victim] was no longer under the "stress of excitement caused by the event."'" Id. at ¶19 (alteration in original) (citations omitted). Additionally, while "[t]he Rule 803(2) hearsay exception permits excited utterances to be recounted," it does not permit "the ongoing discourse of an excited individual." Id. at ¶14.

In Hutto, we concluded the trial court exceeded its discretion when it allowed a police officer to recount an entire interview with an alleged victim instead of limiting the admission to particularized utterances. See id. In this case, the officer testified that when the victim met him at the front door, she said she "wanted no part of her husband anymore." The officer then testified that after he asked the victim what had happened, she took the officer to the bedroom and told him "they were arguing over filling out job applications for [Defendant]. [Defendant] became angry with her, [there was] a little shouting match . . . back and forth, and [Defendant] grabbed the pen out of her hand and stabbed her in the leg with it." The officer described the victim as "excited" but "not out of control."

Under the three-prong test we use to determine admissibility under Rule 803(2), we conclude the first and third prongs are met. A startling event did occur, and the victim's statements to the officer related to that event. See id. at ¶15. We also accept that under the second prong, the statement that she "wanted no part of her husband anymore," was an excited utterance. See id. However, as in Hutto, we conclude the trial court abused its discretion under the second prong when it allowed the officer to recount the victim's entire narrative. See id. at ¶14. Having concluded the trial court abused its discretion when it allowed the victim's entire narrative under the excited utterance exception, we conclude there is insufficient evidence to support Defendant's conviction. Therefore, we reverse Defendant's conviction.(1)
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge

1. Because we conclude the trial court abused its discretion when it admitted the victim's entire narrative, we do not reach the issue of whether the testimony violated the Confrontation Clauses of the United States or Utah Constitutions.