Johnson v. State

Robert H. Dudley, Justice, concurring in part and dissenting in part. I concur in reversing and remanding for a new trial. The murder victim’s six-year-old daughter, Ashley, was available to testify, but was incompetent to testify because the memory of her mother’s murder was impaired. Even so, the trial court allowed a police officer, Hayes McWhirter, to testify that Ashley, after carefully studying a photo lineup, identified appellant as the murderer. I wholeheartedly agree with the majority opinion that the ruling constituted prejudicial error. The officer’s testimony about the six year old’s identification of appellant was hearsay. Ark. R. Evid. 801. The trial court allowed the testimony in evidence under the excited utterance exception to the hearsay rule, Ark. R. Evid. 803(2). The delayed and careful selection of a photograph simply is not an excited utterance under Rule 803(2). Thus, I concur in reversing and remanding the case for a new trial.

The majority opinion goes further, however, and holds that upon retrial, Officer Hayes McWhirter and an employee of the Department of Human Services, Cynthia Emerson, can testify about statements the six year old made to them. The majority opinion will allow the testimony at the retrial under the excited utterance exception to the hearsay rule. I would not allow the statements because they do not fit within the firmly rooted holdings embracing the excited utterance exception, and, by allowing the statements in evidence, the majority will deny appellant the right of confrontation.

The facts are these. Rose Cassidy discovered Carol Heath’s corpse in the living room of the victim’s home at about 6:45 in the morning on April 2, 1993. Ms. Cassidy, the victim’s sister-in-law, hurriedly went to a neighbor’s house and called the police. Upon returning to the victim’s home, she saw the victim’s six-year-old daughter, Ashley, and her brother looking out the bedroom window. Ms. Cassidy said Ashley was scared, but not crying, and was able to respond to questions. Ms. Cassidy asked Ashley what had happened, and Ashley answered that a black man had broken in.

By 7:00 a.m. the police and an ambulance had arrived, and the children were taken out of the house through a window so that they would not see their mother’s corpse. In pretrial hearings, a medical technician, Archie Johnson, testified that Ashley was “not emotional” and that she answered questions about her condition, but she seemed to be in shock because she was quiet. He said that she helped him find her clothes. He said that Ashley told him they were all asleep when they heard something, and her mother got up to see what it was. The the next thing she knew was that her mother had fallen. She did not mention seeing an assailant. The trial court ruled that the statements given to Archie Johnson were not admissible. It is highly significant that the trial court found that the statements to Rose Cassidy and Archie Johnson were not admissible. The import of the ruhng was that Ashley’s first two statements, which did not implicate appellant, were not allowed as excited utterances, and the State does not cross-appeal from that riding.

Ashley and her brother waited in the ambulance untd their grandfather, John Heath, took them to his home. Arlene Heath, their grandmother, testified at a pretrial hearing that when she got to their home, Ashley was “totally out of control.” The grandmother indicated that Ashley “rambled on and on” about what had happened to her mother, and it took about thirty minutes to calm her. During most of the remainder of the day Ashley told her grandmother about the murder, and the detads of the story varied. For example, Ashley told her grandmother that she saw the man when he came in the front door (not mentioning a break-in in this version), that she got up when he came in, and that she saw the man sitting on a couch whde playing with a pistol. At one time she told her grandmother that she hid by the television set in a hall and that she saw her mother lying in blood. Throughout the day, Ashley’s descriptions of the intruder gained in detail, but also became more discrepant. She said the man was bald, but also wore a black hat. She said he was wearing blue jeans and boots, but later she described black pants, a green jacket, a black shirt with red and orange designs, a gold ring, and a tie. Just before 3:30 that afternoon she said she heard someone in the house and saw a “bald black man” wearing a black shirt and pants, green jacket, and red bandanna. She said the man was “chunky.” It is again highly significant that the trial court did not allow this hearsay into evidence, and the State does not cross-appeal from the ruling.

The next person to talk to Ashley was the victim’s sister, Melissa Cassidy. She arrived at the grandparents’ home at about 8:55 a.m., but waited twenty to thirty minutes before going inside. At about 10:30, or almost four hours after the murder was discovered, and presumably considerably longer since the murder took place, Ashley sat in Melissa’s lap and cried for perhaps forty-five minutes. During this time Ashley “blurted out” that a black man had broken in and killed her mother. Melissa remained at the house most of the day. She testified at a pretrial hearing that many visitors arrived and left, and some visited with Ashley. She said that during the day Ashley had periods of calm, she even played with her cousin for a while, but at other times she was upset. Again, it is significant that the trial court refused to allow the statements made to Melissa into evidence, and the State does not cross-appeal.

Officer Hayes McWhirter went to the grandparents’ home at 3:30 in the afternoon to question Ashley. He asked Cynthia Emerson, an employee of the Department of Human Services, to accompany him “to see if Ashley could tell us anything to help with the case.” When they arrived, Ashley was playing outside the home. McWhirter talked to the grandparents while Emerson made small talk with Ashley, who was neither emotional nor crying. McWhir-ter took Ashley to the side of the house to question her. She was timid at first and refused to talk because he had a tape recorder. After he put the tape recorder away, Ashley began to ask him questions about the murder. McWhirter asked her to tell him what she could remember. Because it is critical, his testimony, as abstracted, was: “I said we need you to tell us what you saw last night. We just told her that anything she could remember from last night or who might have been in her house to do this to her mother we needed to know. Then I didn’t say anything. She just unloaded on me.” In doing so, Ashley gave yet another account, the most detailed account of the day. She said her mother and she were sitting on a couch (not asleep or in bed), that someone knocked, and her mother answered and let the man in (no break-in). She said the man asked where Branson was; that the man had a “girl sounding” name (new fact); that he was wearing a black hat with something hanging down the back (new fact), a green (not black) shirt and a sweater (new fact). She said the man had just gotten out of jail and was mad at her mother for dating Branson (new fact). She said the man had hair like McWhirter’s; that she saw the man and her mother fighting (new fact) and saw the man leave in a brown truck (new fact); that he had a gun and a knife (new facts); and that he went to the bathroom while her mother lay on the floor (new facts). Ashley said she was hiding in the closet (new fact), and that she saw the man standing by her mother with a knife in his hand when she came out of the closet to go to the bathroom (new facts). After he left, she went to bed. McWhirter then showed Ashley a photo lineup, and she picked the murderer out of the lineup. McWhirter did not testify that Ashley was emotional, crying, or distressed while he questioned her. He testified that she was “excited,” but admitted she was “in control.” In sum, a police officer went to the grandparents’ home to question the six-year-old witness, but the six year old would not talk to him at first. He put away his tape recorder and asked the six year old to tell him what happened. Ashley did not make a spontaneous outburst. The officer did not testify that Ashley was crying, emotional, or distressed when he began to question her. Yet, the majority opinion holds that her answers can come in under the exited utterance exception to the hearsay rule.

The trial court did not find that statements made to Archie Johnson shortly after 7:00 a.m., or immediately after an adult discovered the murder, were excited utterances, and the State does not cross-appeal; the trial court did not find that statements made to Melissa Cassidy at about 10:30 that same morning were excited utterances, and the State does not cross-appeal; the trial court did not find that statements made to the six year old’s grandmother, Arlene Heath, during the course of the day were excited utterances, and the State does not cross-appeal. Yet, the trial court held, and the majority opinion affirms, that responses given to a policeman later in the day are admissible as an excited utterance. None of the cases cited in the majority opinion support such a holding.

An excited utterance is “[a] statement relating to a starding event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ark. R. Evid. 803(2). Here, under the law of the case, the declarant was not “under the stress of excitement caused by the event” from 7:00 a.m. until 3:00 p.m., but in some way went into the stress of excitement in response to police questioning. A recitation of past events does not constitute an excited utterance. Marx v. State, 291 Ark. 325 , 724 S.W.2d 456 (1987). The statements were not spontaneous utterances; rather, they were a product of questions by the officer. Although the declarant was only six years old, she obviously had discussed her mother’s murder with others and then added many new facts upon questioning by the officer. This was not a mere utterance; it was complete statement. The issue is not whether the excited utterance is accurate; rather, it is whether it is trustworthy, and trustworthiness comes from spontaneity under stress and a lack of reflection and deliberation. Cole v. State, 307 Ark. 41 , 818 S.W.2d 573 (1991). It was the same officer who showed Ashley the photo lineup at the same interview. In some way, the majority opinion holds her response to the lineup is hearsay, but the accompanying statements are not hearsay. The statements do not come within the deep-rooted guarantees of trustworthiness. As a result, appellant will be denied his right of confrontation. I would not allow the responses to Officer McWhirter’s questions into evidence upon retrial.

Newbern and Roaf, JJ., join.