State v. Mickelson

JACKSON, Judge

(concurring):

I concur with the majority but write separately to clarify the standard of review on the admissibility of hearsay evidence under the excited utterance exception. I point out the perseverance of the well-established review standard of deferring to the trial court’s admissibility determination, absent an abuse of the court’s discretion. I believe that the majority’s broad reading of footnote dicta in State v. Ramirez, 817 P.2d 774, 781 n. 3 (Utah 1991), is inappropriate and potentially problematic. Moreover, it runs counter to the traditional “abuse of discretion” review standard for evidentiary rulings in general. State v. Iorg, 801 P.2d 938, 939 (Utah 1990) (trial court’s admission or rejection of evidence will not be disturbed unless the court has clearly abused its discretion); State v. Griffiths, 752 P.2d 879, 883 (Utah 1988) (it is well settled that trial court rulings on admissibility of evidence are not to be overturned in absence of clear abuse of discretion); State v. Gentry, 747 P.2d 1032, 1035 (Utah 1987) (trial court’s evidentiary ruling will not be reversed absent abuse of discretion); State v. McClain, 706 P.2d 603, 604 (Utah 1985) (appellate court will not interfere with rulings on evidentiary matters unless it clearly appears discretion is abused).

The trial judge must decide whether the witness testifying of the out-of-court statement is credible and whether the statement itself is trustworthy in light of other evidence.¹ We review the decision with deference because the trial judge is in a better position to appraise the nuances and intangibles crucial to a just result.

I now turn to eases dealing with admission of hearsay evidence and specifically with the excited utterance exception. State v. Thomas, 777 P.2d 445 (Utah 1989) is such a case. There, defendant challenged admission of the testimony of a peace officer about statements made by the victim during an interview conducted one to two hours after a rape incident. Id. at 448-49. The trial judge admitted the testimony on the ground that the declarant’s statements came under the excited utterance exception pursuant to Utah R.Evid. 803(2). Id. at 449. The court stated that this “determination rests in the sound discretion of the trial court.” Id. Another case, State v. Kaytso, 684 P.2d 63 (Utah 1984), was decided under former Rule 63(4)(b), which allowed admission of a statement made “under the stress of nervous excitement.” There the court concluded:

The trial judge did not abuse his prerogative under Rule 63(4). Consequently, as traditionally we are obliged to do under such circumstances, we leave undisturbed the judgment below.

Id. at 64.

The Pacific Reporter states consistently apply the abuse of discretion standard of review for excited utterance rulings. State v. Strauss, 119 Wash.2d 401, 832 P.2d 78, 86 (1992) (trial court’s determination that a statement falls within the excited utterance exception will not be disturbed absent an abuse of discretion); State v. Bryant, 65 Wash.App. 428, 828 P.2d 1121, 1123 (1992) (excited utterance exception to the hearsay rule is within the sound discretion of the trial court and is reviewable only for abuse of that discretion); Montez v. Superior Court, 4 Cal.App. 4th 577, 583-84, 5 Cal.Rptr.2d 723, 726-27 (Cal.App. 2 Dist.1992) (abuse of discretion standard applied to trial court’s finding that declaration made under sufficient stress to qualify for admissibility under the excited utterance provisions of the hearsay rule); People v. Garcia, 826 P.2d 1259, 1264 (Colo.1992) (in reviewing trial court’s decision on the admissibility of statements under the excited utterance exception, we must consider the totality of circumstances presented to determine whether the trial court abused its discretion); State v. Thompson, 169 Ariz. 471, 820 P.2d 335, 338 (1991) (appellate court concluded trial court had abused its discretion in admitting, as excited utterances, statements made by two young children); State v. Bingham, 116 Idaho 415, 776 P.2d 424, 430 (1989) (the trial court did not abuse its discretion in admitting the excited utterance of the victim); Hawkins v. State, 761 P.2d 918, 920 (Okla.Crim.App.1988); Balentine v. State, 707 P.2d 922, 926 (Alaska Ct.App.1985); Kelly v. State, 694 P.2d 126, 132-33 (Wyo.1985); Shea v. City & County of Honolulu, 67 Haw. 499, 692 P.2d 1158, 1165 (1985); State v. Norgaard, 201 Mont. 165, 653 P.2d 483, 488 (1982); Vander Veer v. Toyota Motor Distributors, Inc., 282 Or. 135, 577 P.2d 1343, 1350 (1978).

Moreover, the Federal Circuit Courts of Appeal also apply the abuse of discretion standard under the identical Federal Rule of Evidence 803(2). For example, in United States v. Golden, 671 F.2d 369 (10th Cir.1982), the defendant challenged testimony regarding the victim’s statements to his grandmother. The Tenth Circuit stated:

Rulings on evidentiary matters are committed to the discretion of the trial judge and will not be reversed on appeal unless it is shown that the ruling was a clear abuse of discretion or that it affected the substantial rights of the defendant.

Id. at 371. In view of the well-established body of state and federal law regarding the standard of review for evidentiary rulings of this type, it is “clear error” for the majority to adopt and apply the Ramirez dicta as the correct standard. The majority relies only on Ramirez for precedential support and pays no attention to the cases cited above.² Further, Ramirez involved a suppression hearing to decide the constitutionality of admitting relevant eyewitness identification testimony, not admission of hearsay evidence.

I agree with the majority’s conclusion that the excited utterances should be admitted. I differ with the majority’s circular analysis to reach the same result. I would affirm the trial judge’s ruling because the trial court did not abuse its discretion in admitting the hearsay statements under the Rule 803(2) hearsay exception.

1 . The Rules of Evidence “vest the trial court with considerable discretion as to whether relevant hearsay should be admitted." Charles L. Powell & Robert W. Burns, A Discussion of the New Federal Rules of Evidence, 8 Gonz.L.Rev. 1, 21 (Fall 1972).

2 . I note that State v. Cude, 784 P.2d 1197 (Utah 1989), relied upon by the majority, states a deferential review: "This court will not disturb a trial court's ruling on the admissibility of evidence absent a showing of clear error.” Id. at 1201 (footnote omitted). This "clear error” line of authority in Cude can be traced directly back to the case of State v. Tuttle, 16 Utah 2d 288, 399 P.2d 580, 582 (Utah 1965), cert. denied, 382 U.S. 872, 86 S.Ct. 129, 15 L.Ed.2d 110 (1965), which states:

The practical exigencies of a trial render it imperative that the trial judge have the prerogative of ruling upon questions of admissibility of evidence and upon issues of fact incidental .to that purpose. For this reason, and because of his position of advantage to observe the demeanor of witnesses and other factors bearing on credibility, his ruling thereon should not be disturbed unless it clearly appears that he was in error.

Thus, Tuttle actually describes an abuse of discretion standard.