State v. St. Jean

BEYILACQUA, Chief Justice,

concurring in part and dissenting in part.

*740Although I concur with the conclusion, I must respectfully dissent on the issue of what constitutes a spontaneous-utterance exception to the hearsay rule. The rationale adopted today effectively eradicates the element of spontaneity from the spontaneous-utterance exception.

After Mrs. Ainsworth’s original exclamations to the officer, he conducted a twenty-minute “interview” with the victim. I find objectionable the admission of the contents of the twenty-minute interview. In affirming the admission, my colleagues lost sight of the purposes served by the hearsay rule and its exceptions.

It is generally agreed that the hearsay rule serves to protect against the admission of unreliable evidence. “The theory of the hearsay rule is that many of the possible sources of inaccuracy and untrustworthiness which may lie underneath the base untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination.” 5 Wig-more, Evidence § 1420 at 251 (Chadbourn rev. ed. 1974). Cross-examination is but one method of assuring reliability; the hearsay rule contemplates that there may be substitutes for cross-examination which provide sufficient indicia of reliability for the out-of-court statement to permit it to come in as evidence at trial. Id.; see also Younger, Confrontation And Hearsay: A Look Backward, A Peek Forward, 1 Hofstra L.Rev. 32, 36 (1973).

“The rationale for the [spontaneous-utterance] exception lies in the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication.” McCormick’s, Handbook of the Law of Evidence, § 297 at 704 (2nd ed. Cleary 1972). The exception has two basic predicates to admissibility: there must be a startling event to render the reflective thought process of the declarant inoperative and the statement must have been made both in response to the stress of the startling incident and while the declarant was still under that stress. State v. Nordstrom, 104 R.I. 471, 476, 244 A.2d 837, 840 (1968). There is no requirement that the spontaneous utterance be strictly contemporaneous with the event. Id. at 475, 244 A.2d at 840; e.g., State v. Creighton, R.I., 462 A.2d 980, 983 (1983); State v. Souza, R.I., 456 A.2d 775, 778 (1983).

Although the startling event, the robbery, which prompted Mrs. Ainsworth’s original remarks1 to the officer occurred some three hours earlier, there can be little doubt that these statements fall within the excited-utterance exception. This woman was in her mid-seventies, had just been robbed, bound to a chair, and warned not to tell anyone about the incident. Indeed, Mrs. Ainsworth did not move until the officer came and forced open the door.

The aspect of concern is that it allows the contents of the entire twenty-minute interview to be admitted on the coattails of the original utterances. This admission is permitted on the basis that Mrs. Ainsworth was extremely upset throughout the interview. The court, in affirming the trial court’s admission of this evidence, relies upon State v. Creighton, R.I., 462 A.2d 980, 982 (1983). I believe that this conclusion is incorrect and that the reliance upon Creighton is misplaced.

In Creighton the victim was a nine-year-old boy who had been sexually assaulted by his stepfather. The boy never discussed the incident until the officer questioned him. The utterance would not have occurred “but for” the officer’s questions. See id., 462 A.2d at 982; see also State v. Nordstrom, 104 R.I. 480, 485, 244 A.2d 842, 845 (1968) (utterances of child victim of sexual assault was “prompted” by harrowing incident and not parents’ questioning). In the instant case, the victim made the original utterances without prompting; however, all the details came from the twenty-minute interview. Creighton, in turn, only address*741es the situation in which the original utterance is prompted by a question, not one in which a voluntary utterance is followed by a twenty-minute “interview” conducted by a police officer trying to ascertain the details of the incident.

Additionally, I do not believe that Mrs. Ainsworth’s emotional state justifies the blanket admission of her entire conversation with the officer. “The use of such terms as ‘tears,’ ‘nervous,’ or ‘upset’ are not to be the ‘open sesame’ to having a declar-ant’s statement classified as a spontaneous utterance.” State v. Jalette, 119 R.I. 614, 621, 382 A.2d 526, 530 (1978). It is not the excited state of the declarant alone that is decisive, it is also the spontaneity of the utterance, thus suspending the declarant’s deliberative powers, which renders the statement reliable and provides a substitute for cross examination. We have held that in determining whether a statement qualifies as an excited utterance, “the test to be applied is whether from the facts of a particular case the statements were spontaneous or impulsive or whether they were the product of reflection and deliberation.” State v. Nordstrom, 104 R.I. at 476, 244 A.2d at 840. Accord State v. Carraturo, 112 R.I. 179, 185, 308 A.2d 828, 831 (1973).

The responses to questions given during a twenty-minute interview cannot be considered spontaneous utterances. We have previously described a spontaneous utterance as an “effusion,” which is thus free from deliberation and reflection. In re Daniel, R.I., 456 A.2d 258, 260 (1983); State v. Jalette, 119 R.I. at 622-23, 382 A.2d at 531. An “interview” is designed to have one party obtain information from the other and necessarily involves the interviewee’s powers of reflection. There can be nothing spontaneous about the answers to questions posed during the course of a twenty-minute interview. I believe that Mrs. Ainsworth’s answers “were neither instinctive nor impulsive.” State v. Jalette, 119 R.I. at 622, 382 A.2d at 531. Accordingly, there were no guarantees of reliability to substitute for the cross-examination of Mrs. Ainsworth, and thus these statements were admitted in violation of the hearsay rule.

Although I believe that it was error to admit these statements, in light of the evidence against the defendant, the error may be considered harmless. My concern lies with the precedent that today’s case potentially sets for the future. The nervous excitement one experiences as a victim of crime may last an indefinite time. If we are to accept the rationale of the decision rendered today, at what point do we prohibit the admission of out-of-court statements? At some point the deliberative powers must come in to play, and a statement will become narration and not a spontaneous utterance. It is not merely fabrication with which this hearsay exception is concerned, it is also lack of memory or distortion of memory. Without the element of spontaneity, heightened emotional state alone cannot serve as a sufficient guarantee of reliability to substitute for cross-examination. State v. Jalette, 119 R.I. at 621, 382 A.2d at 530.

. The officer testified that as soon as he entered the apartment, Mrs. Ainsworth cried out, “Kathy upstairs robbed me.' They tied me up. They took my ring.”