Juan Dukes, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

JUAN DUKES, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 01-72

DECEMBER 5, 2001

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-002936]

HONORABLE DAVID BOGARD, CIRCUIT JUDGE

AFFIRMED

Juan Dukes, Jr., was convicted of being a felon in possession of a firearm and as a habitual offender, he was sentenced to ten years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in allowing the State to introduce a witness's statement about the incident through a police officer's testimony, pursuant to the excited-utterance exception to the hearsay rule. We affirm.

The State charged Dukes with possession of a firearm in violation of Ark. Code Ann. § 5-73-103(a)(1), alleging that on May 8, 1999, Dukes had possession of a firearm during a domestic disturbance. A nonjury trial was held on June 5, 2000. During the trial, the State called Little Rock Patrolman Victor Sanders to testify. Sanders testified that on May 8th, 1999, he investigated a domestic disturbance. He arrived at the residence approximately nine minutes after an altercation between Dukes and April Williams occurred. Sanders described Williams as being visibly shaken, and still nervous from the incident, and he testified that she had a bite mark on her shoulder. Dukesobjected to testimony regarding what Williams told Sanders at the scene, alleging that it was hearsay. The State argued that the statements were admissible under the excited-utterance exception to the hearsay rule. After allowing Dukes to voir dire Sanders, the trial court overruled Dukes's objection, finding that Williams's statement was close in time to the incident and that she was still in an excited state. Sanders went on to testify that Williams had told him that Dukes had pushed her, bit her, and showed her a firearm. Sanders also testified, without objection, that Dukes had told him he displayed the weapon during the disagreement. The only other witness who testified at trial was Dukes, who denied having told Sanders that he had displayed the firearm and denied that he ever had possession of the firearm.

The trial court found Dukes guilty of being a felon in possession of a firearm and as a habitual offender with four or more felonies, sentenced him to ten years in the Arkansas Department of Correction. From that conviction, comes this appeal. Dukes contends that the trial court erred in allowing Sanders to testify, pursuant to the excited-utterance exception to the hearsay rule, about statements Williams made to him about the incident. Dukes argues that the State failed to establish that Williams was still under the stress of the event, which is a requirement for the exception to apply.

A trial court's ruling on the admissibility of evidence is within the discretion of the trial court and will not be set aside absent an abuse of discretion. Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001). Rule 803(2) of the Arkansas Rules of Evidence provides that excited utterances are excepted from the hearsay rule. An excited utterance is defined as 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." There are several factors to consider when determining if a statement falls under this exception: the lapse of time (which is relevant, but not dispositive), the age of the declarant, thephysical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In order for this exception to apply, there must be an event that excites the declarant, the statements must be uttered during the period of excitement, and the statements must express the declarant's reaction to the event. Id. "It is within the trial court's discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect." 341 Ark. at 769, 20 S.W.3d at 320.

In this case, Williams made the statement less than ten minutes after she was involved in an altercation with Dukes, in which she was injured. Sanders testified that she was still excited, shaken up, and nervous, and her brother was trying to comfort her and calm her down. Her statements to Sanders expressed her reaction to the incident. Although her statement was in response to questioning by Sanders, this factor alone is not determinative of whether the statements are made under the stress of excitement or are the product of reflection and deliberation. Lewis, supra. In Hill v. State, a police officer's testimony regarding statements made to him by a witness to a murder thirty minutes after the event was admissible under the excited-utterance exception, where the witness was described as being "visibly shaken and upset," and where she looked as if "she had just been through an ordeal." 344 Ark. 216, 40 S.W.3d 751 (2001). Given Sanders's testimony that Williams was still shaken up and nervous from the incident, it was not an abuse of discretion for the trial court to find that Williams's statement was made under the stress of excitement and to allow this testimony.

Affirmed.

bird and jennings, jj., agree.