# State v. Young

> Washington Supreme Court · July 12, 2007 · 160 Wash. 2d 799

URL: https://www.frixlaw.com/law-library/cases/4713675

## Case

- **Full name:** The State of Washington v. Henry Eugene Young
- **Court:** Washington Supreme Court
- **Decided:** July 12, 2007
- **Citations:** 160 Wash. 2d 799
- **Precedential status:** Published
- **Opinion:** Dissent by Sanders
- **Judges:** Alexander, Fairhurst, Madsen, Sanders
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4713675

## How later opinions describe it (automated extraction)

- explaining a subsequent recantation does not render an excited utterance inadmissible without definitive evidence that establishes the initial statement was fabricated
- rejecting a bright -line rule that an excited utterance is never admissible once it has been recanted "

## Opinion text

*822 ¶50 (dissenting) — The majority holds excited utterances are admissible hearsay, even when recanted by the person who made them and no independent evidence corroborates their validity. I disagree. For an excited utterance to be admissible, we must be assured it was uttered during actual excitement. Furthermore, admitting these statements is not harmless error. Henry Young’s conviction and sentence should be reversed.
Sanders, J.
¶51 K.L., an 11-year-old girl, accused Henry Young of attempting to molest her. One day she ran out of her house, crying hysterically, and “confided” in a neighbor that Young tried to inappropriately touch her. K.L. later admitted she made it all up. Apparently, she was upset Young was dating her mother — KL.’s mother, Kayla, and Young married soon after the alleged incident. Despite being hearsay, despite being recanted, and despite a lack of independent corroboration, the statements are allowed by the majority to come in, condemning Young to life in prison without possibility of parole.
¶52 Hearsay is any out-of-court statement offered as “evidence to prove the truth of the matter asserted.” ER 801(c). Our judicial system prefers testimony to be “live,” so the jury can deduce the truthfulness of the person making the statement, both by watching the witness respond and being privy to his cross-examination. Hearsay is unreliable because the jury does not get to witness the original making of the statement. 16 But under certain circumstances, we *823 allow for exceptions to the hearsay rule. An excited utterance is one such exception. ER 803(a)(1) provides, “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: .... A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The assumption underlying the excited utterance rule is some events are so startling, so shocking they produce “ ‘a stress of nervous excitement ... which stills the reflective faculties [and results in] a spontaneous and sincere response’ ” not yet altered by reflection or self-interest. State v. Chapin, 118 Wn.2d 681, 686 , 826 P.2d 194 (1992) (quoting 6 John Henry Wigmore, Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn rev. ed. 1976)). 17
¶53 Here we do not know if there even was a startling event. This belies the very foundation of the excited utterance exception. If there was no startling event, there was no shock or stress to “ ‘still [ ] the reflective faculties’ ” and no “ ‘spontaneous and sincere response.’ ” Id. at 686; see majority at 812-13 (“An excited utterance derives its reliability mainly from the heightened emotional state of the declarant as a result of the startling event, not from the event itself.”). Ignoring the fact K.L. later said she was lying, all the trial court relied on was K.L.’s hearsay statement. The majority purports to say words are not enough by themselves but when combined with indepen *824 dent circumstantial evidence, the statement may be corroborated. Majority at 809. This circumstantial evidence includes KL.’s “behavior, appearance, and condition.” Id. at 810. In other words, how she made the statement as well as what she said must be considered. Specifically, the majority relies on the trial court finding that these statements were “ ‘emotionally laden.’ ” Id. at 818 (quoting 3 Verbatim Report of Proceedings (RP) at 167-68).
¶54 But K.L.’s histrionics are not “independent” evidence. Relying on how she made the statement is no more corroborative than the bare words themselves. K.L. later admitted her performance was just that — a performance. If she is capable of falsifying what she said, then she is capable of falsifying how she said it. The majority’s rule amounts to this: bare words are insufficient, but hysterical words are enough. Practically, this allows the very infirmity the majority laments. Because there will rarely be an “excited utterance” one doesn’t utter excitedly, a trial court may now allow hearsay testimony — statements regarded as inherently untrustworthy — based on only the unreliable hearsay statement itself.
¶55 Chief Justice Alexander concurs it was error for the trial court to admit KL.’s statements, but nevertheless claims the majority was right to affirm Young’s conviction because the error was harmless. Concurrence at 821. However, we cannot predict what the result would have been absent KL.’s inadmissible hearsay. Indeed, if we had to guess as to one particular result — and guessing is as good as we can ever do — the better money would be on the jury finding Young not guilty. As the trial judge said, without K.L.’s hearsay statements, the State “would be out of business, pretty much.” 1 RP at 169.
¶56 An error is not harmless unless it was an “error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” State v. Britton, 27 Wn.2d 336, 341 , 178 P.2d 341 (1947). Admitting these statements was prejudicial because it *825 significantly affected the evidence before the jury. We cannot excuse an error resulting in the admission of unreliable hearsay evidence that goes to the very heart of the matter in controversy. “[I]t is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917 , 167 P.2d 986 (1946). So too it is impossible for this court to contemplate the probabilities the absence of evidence may have upon the minds of the jurors. The assumption a court “can determine what evidence or instruction influenced the jury’s decision” is “a tacit admission that an appellate court is necessarily engaging in fact-finding.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277 , 279 (1995).
¶57 While acknowledging this is a “close question,” the majority claims later-considered evidence corroborates K.L.’s veracity and therefore any possible error in admitting her statements was not “prejudicial.” Majority at 819. Never before has this court applied harmless error analysis so broadly. The majority cites no authority that allows a trial judge to correct a past error with future evidence.
¶58 Evidence is either admissible or it is not. Here it was not. Hearsay cannot be corroborated by the statement itself. And because these statements were relevant to deciding the issue before the jury, the error was prejudicial.
¶59 I dissent.
J.M. Johnson, J., concurs with Sanders, J.
Reconsideration denied September 20, 2007.
The hearsay rule considers the potential harmful effect of unreliable evidence on a jury’s decision making. These facts illustrate why a mistrust of this evidence is well founded. The rule against hearsay is one that dates back centuries to English common law. White v. Illinois, 502 U.S. 346 , 356 n.8, 112 S. Ct. 736 , 116 L. Ed. 2d 848 (1992) (finding the excited utterance exception itself may date back to the 17th century). We should respect the hearsay doctrine, a fundamental *823 precept of our rules of evidence, and allow an “excited utterance” only in accordance with the rule: when the evidence has independent corroboration to authenticate it.
A wealth of authority supports the requirement of independent proof of the startling occurrence. “There must be independent proof of the occurrence to which the statements relate, since the statements themselves cannot be used to prove the exciting event. ... [I]t is incumbent upon the party seeking its admission to persuasively and convincingly demonstrate by the use of other corroborating evidence that the declarant actually viewed the event of which he speaks.” 31A C.J.S. Evidence § 359, at 649 (1996) (emphasis added) (footnote omitted); see also Brown v. United States, 80 U.S. App. D.C. 270 , 152 F.2d 138, 140 (1945); People v. Leonard, 83 Ill. 2d 411 , 415 N.E.2d 358 , 47 Ill. Dec. 353 (1980); People v. Burton, 433 Mich. 268 , 445 N.W.2d 133, 144 (1989); State v. Post, 901 S.W.2d 231, 235 (Mo. Ct. App. 1995); Commonwealth v. Barnes, 310 Pa. Super. 480 , 456 A.2d 1037, 1040 (1983); Truck Ins. Exch. v. Michling, 364 S.W.2d 172 (Tex. 1963).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4713675. Public record. Not legal advice.