Harold M. Madison, Respondent, vs. George A. Madison, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-918

State of Minnesota,

Respondent,

vs.

Winford McIntosh,

Appellant.

Filed May 9, 2000

Affirmed

Shumaker, Judge

Hennepin County District Court

File No. 98104489

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Senior Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant Winford McIntosh appeals his conviction for terroristic threats, arguing that the trial court erred in admitting hearsay evidence.  We affirm.

FACTS

At about 9:30 p.m. on October 15, 1998, the Minneapolis Emergency Communications Department received a 911 telephone call from a woman who identified herself as Demita.  The origin of the call was 2727 Upton Avenue North.  The 911 operator was having difficulty obtaining information from the woman and said, "This is the Minneapolis Police Department."  The woman replied, "I know.  I know.  Oh, God.  Oh, God."  The woman's statements were mostly inaudible after that except her indication that, "He's trying to kidnap me, hurry."  The operator arranged for a police squad to go to the Upton Avenue address.

Two police officers arrived and knocked on the door but received no response.  While they were at that address, the same woman called 911 again from her car.  She said she had been kidnapped and was at a gas station on Broadway.  She stated that, "[H]e's * * * in the gas station and I have a black eye and he just beat me and kicking me * * *."  She described the car and said, "Yes, please help me, he's coming out."  "Please help me.  I can't see out one of my eyes."  During this conversation, the 911 operator told the woman several times to "settle down" or "listen to me."

When the police arrived, the woman said her assailant was Winford McIntosh, who lived at 2727 Upton, and she said she was Demita Williams.

The state charged McIntosh with terroristic threats and possession of a pistol by a felon.  Demita Williams did not appear to testify at the jury trial, and the court determined that she was unavailable.  One of the police officers who responded to the 911 call testified that when he and his partner found Williams,

She was hysterical.  She kept shouting over and over again that "He's going to kill me."  I had a very difficult time trying to get information from her to find out exactly what was going on.  It was probably a good one to three minutes before I was able to attempt to calm her down.

Over McIntosh's hearsay objection, the trial court admitted the 911 recordings as excited utterances.  McIntosh asserts that ruling was prejudicial error.

D E C I S I O N

Evidentiary rulings generally rest within the trial court's discretion and will not be reversed absent an abuse of that discretion.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998) (quotations omitted).  The Supreme Court has set forth a two-part test for determining whether an out-of-court statement can be admitted without violating a defendant's right to confront witnesses against him:

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.  Even then, his statement is admissible only if it bears adequate "indicia of reliability."  Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.  In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980);  State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981) (adopting test).  It is undisputed that Williams, the hearsay declarant, was unavailable.  Furthermore, McIntosh admits that the excited utterance is a firmly rooted hearsay exception.  State v. Daniels, 380 N.W.2d 777, 785 (Minn. 1986).

            "A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition" is not excluded by the hearsay rule.  Minn. R. Evid. 803(2).  To qualify as an excited utterance, a statement must meet three requirements: (1) there must be a startling event or condition; (2) the statement must relate to the startling event or condition; and (3) the declarant must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.  Minn. R. Evid. 803(2), 1989 committee comm.  The trial court must consider all relevant factors to determine whether the statement was given while the declarant actually was under the aura of excitement, including the length of time elapsed, the nature of the event, the physical condition of the declarant, and any possible motive to falsify.  Id.; State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (determining whether declarant was under aura of excitement within sound discretion of the trial court).

McIntosh argues that the first 911 call did not qualify as an excited utterance because there was no identification of the caller, no description of the startling event, and no evidence that the caller was under the aura of excitement.

The 911 tape of the first call reveals that the caller gave her name as Demita.  The call came from 2727 Upton, McIntosh's address.  The caller stated that someone was trying to kidnap her.  By her voice and statements, the caller appeared emotionally distraught.  A "kidnapping" surely qualifies as an event that would cause the victim to be upset.  Williams' statements related to that event, and she appeared to be under the aura of excitement when she spoke.  The trial court did not err in admitting into evidence the 911 tape recording of the first call.

McIntosh contends that the second 911 call did not qualify as an excited utterance because there was no evidence of the time lapse between the startling event and the call.  Thus, he argues, there was time for Williams to reflect and to fabricate a story.  He also suggests that the second call was made out of anger rather than fear.

The startling event to which Williams referred in the first call was her "kidnapping."  That is the same event to which she referred in the second call.  By then McIntosh had taken her to a different location.  Although there is some time lapse between the 911 telephone calls, the startling event itself continued until the police arrived at the gas station.  Even assuming significance in the time lapse between the 911 calls, the gap necessarily was short.  The officers arrived at the Upton address at 9:40 p.m.  Williams made the second call while the officers were at that address.  By then Williams was only a mile and a half away.  Not only was the time gap brief but also Williams revealed through her voice and the content of her statements that she was still agitated.  See Daniels, 380 N.W.2d at 782-83 (one hour after startling event still an excited utterance); State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985) (90 minutes after startling event still an excited utterance).  The trial court did not err in admitting the second 911 telephone call.

Finally, McIntosh argues that Williams' statements to the police were responses to questions and were inherently untrustworthy.  State v. Hansen, 312 N.W.2d 96, 103 (Minn. 1981) ("unsworn, ex parte statements made during police questioning have traditionally been considered as inherently untrustworthy").  But excited utterances in response to investigative questions by the police remain trustworthy.  See Edwards, 485 N.W.2d at 914 (holding statement to police when they arrived on the scene and first statement to police admissible as excited utterances.); State v. Spears, 560 N.W.2d 723, 726 (Minn. App. 1997) (statements to police following sexual assault admissible as excited utterances), review denied (Minn. May 28, 1997).

Several of the investigating officer's questions were in fact responses to Williams' excited utterances.  Before any questioning, Williams revealed that McIntosh put a pistol to her head, beat her up, and restrained her against her will.  Some of her answers were not responsive to the officer's questions.  For example, when the officer asked, "Do you need an ambulance?", she replied, "No, I want you all to go and get the pistol out of the house that he held me at gunpoint."  This exchange occurred while Williams was extremely agitated, for the officer had to tell her to "relax for a minute," and "you need to calm down."  Williams was not calmly answering questions propounded by a police investigator.  Rather, her "answers" were principally products of her excited state, and, as such, were admissible under the excited-utterance exception to the hearsay rule.  The trial court did not abuse its discretion in admitting Williams' "answers" to police questions.

Affirmed.