Summary 2011 WY 95

Summary of Decision June 17, 2011


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Case Name: Marquess v, State

Citation: 2011 WY 95

Docket Number: S-10-0172

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462934

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: June 17, 2011

Facts: The appellant was tried and convicted by a jury of aggravated assault and battery, battery, kidnapping, and being a habitual criminal. The appellant appeals from the Judgment and Sentence, arguing that the district court abused its discretion when it admitted evidence of uncharged misconduct and prior consistent statements by the victim.

Issues: Whether the district court abused its discretion when it admitted evidence of the events that occurred on the day before the charged offenses. Whether the district court abused its discretion when it admitted into evidence a 911 recording under W.R.E. 801(d)(1)(B). Whether the 911 recording admissible under W.R.E. 802(2) as an excited utterance.

Holdings: Appellant argues that testimony that he, his brother and an acquaintance allegedly held the victim at knife point on the night before the charged offenses was uncharged misconduct evidence governed by W.R.E. 404(b) and that the State failed to provide adequate notice of its intent to use such evidence and that the district court failed to order the required hearing relating to the evidence. However, the incident in question was one of many pieces of direct evidence of the conspiracy with which the appellant was charged – conspiracy to commit the aggravated assault and battery. The conspirators (the appellant and his brother) were present at both incidents and the threats of serious violence, distrust in the victim, and interest in the victim stealing the guns were common themes in both incidents. The incident in question was undertaken in furtherance of the charged conspiracy and was evidence of an overt act showing an agreement between the conspirators to carry out some illegal act (assault and battery) if the victim did not do as he was instructed. As such, the evidence was not of uncharged misconduct evidence, but instead was admissible as an inseparable part of the whole deed.

Four requirements must be satisfied before a prior consistent statement will be properly admissible: (1) The declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the prior statement; (3) the prior statement is consistent with the declarant’s trial testimony; and (4) the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. In the present action, the appellant concedes that the State met its burden with regard to the first three requirements. Therefore, the only issue is whether the fourth requirement—the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive—was met.

The charge of fabrication or improper motive need not come only as a specific allegation during cross-examination but may be derived from the “thrust” of the defenses and testimony presented. Additionally , it is not necessarily error that the prior consistent statement was received in evidence before the allegation of fabrication or improper motive. The proferred prior consistent statement in this case was a recorded 911 call made by the victim almost immediately after he jumped out of the window of the hotel room where he was beaten and held hostage. At trial and on appeal, the State asserted that the 911 call statements were admissible because there had been an implication by the appellant that the victim was fabricating his story, or that he could not remember the events accurately because he was using drugs and alcohol at the time. The appellant counters that he never alleged recent fabrication, but merely cross-examined the victim and tested his recollection of the events. A review of the record, especially the trial transcripts, shows that the appellant’s characterization more accurately reflects the parties’ respective positions. While the appellant did attack the victim’s credibility generally, and also submitted evidence of his prior criminal convictions involving lying, the appellant did not, either explicitly or implicitly, allege that the victim’s testimony was the result of a recent fabrication or improper motive or influence. The focus of W.R.E. 801(d)(1)(B) is the use of a prior consistent statement as rehabilitation of a witness whose credibility has been impeached in the particular manner described in the rule. A general attack on a witness’s credibility, without a claim of motive, influence or recent fabrication, does not warrant admission of 801(d)(1)(B) evidence. In this case, the appellant did not explicitly or implicitly claim that the victim’s in-court testimony was a recent fabrication or the result of some improper motive or influence. Without such a claim, the prior consistent statement in the 911call did not fall within the purview of 801(d)(1)(B), and was therefore inadmissible hearsay.

Although the 911 call should not have been admitted as a prior consistent statement, it was admissible under the “excited utterance” exception to the hearsay rule. This exception, found in W.R.E. 803(2), provides that statements are not excluded by the hearsay rule if they relate “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” There are five factors to be considered in determining the admissibility of evidence under the excited utterance exception: (1) the nature of the startling event; (2) the declarant’s physical manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry. The ultimate inquiry is whether the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. In the present case, each of the factors weighs in favor of admissibility. After being severely beaten, the witness jumped out of a hotel room window, ran to the hotel office, and yelled to the front desk employee to call 911. The front desk employee, whose testimony was admitted without objection, gave a similar account of the events of that night.

Affirmed.

J. Voigt delivered the opinion for the court.