Opinion
No. 77-586
Decided June 1, 1978. Rehearing denied June 22, 1978. Certiorari denied September 11, 1978.
Alleging prejudicial error in an evidentiary ruling, defendant appealed his conviction of sexual assault of a child.
Affirmed
1. EVIDENCE — Statements Indicative — State-of-Mind — Regardless of Truth — — Admissible — Not Hearsay — Distinguished — Truth Significant — Hearsay — Reliability Required. Out-of-court statements indicating one's state of mind may or may not be hearsay, depending upon whether such statements show mental state regardless of their truth: Out-of-court statements which circumstantially indicate a state of mind regardless of their truth are admissible as non-hearsay statements; however, out-of-court statements which indicate a state of mind because of their truth are hearsay, and are admissible only if certain reliability requirements are met to qualify them as an exception to the hearsay rule.
2. CRIMINAL LAW — Statements of Defendant — To Psychiatrist — Indicative — State of Mind — Only If True — Showed — Past State of Mind — Not Within — Hearsay Exception — Not Admissible. Where, in prosecution for sexual assault on a child, psychiatrist sought to testify that defendant had told him that he was intoxicated at the time of the offense, defendant's statement would only be indicative of his state of mind if it were true, and therefore it was hearsay, and because it reflected a past state of mind, rather than a present one, it does not fall within an exception to the hearsay rule; accordingly, the trial court properly excluded the psychiatrist's testimony.
Appeal from the District Court of Jefferson County, Honorable George G. Priest, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Attorney General, J. Stephen Phillips, Assistant Attorney General, for plaintiff-appellee.
Michael F. Morrissey, for defendant-appellant.
Defendant, William Ralph Cavalier, was convicted by a jury of sexual assault on a child in violation of § 18-3-405, C.R.S. 1973 (1976 Cum. Supp.). On appeal he contends prejudicial error in an evidentiary ruling. We affirm.
Defendant's only witness was a psychiatrist who testified that he examined defendant on two occasions approximately six weeks after the alleged offense. Defendant sought to elicit the doctor's opinion with respect to defendant's ability to formulate the intent necessary for commission of the crime. According to defendant's offer of proof, the doctor would testify that defendant had told him that he was intoxicated at the time of the offense. Defendant's statement was to be introduced as proof of defendant's state of mind at the time of the incident, and as a foundation for the doctor's opinion. However, the court excluded the testimony because the doctor's opinion appeared to be based solely on defendant's statement.
On appeal, defendant does not contend that the court abused its discretion in excluding expert opinion testimony, or in excluding the statements which form the basis for such testimony. See People v. Parks, 195 Colo. 344, 579 P.2d 76. Rather, relying, in part, on People v. Lyles, 186 Colo. 302, 526 P.2d 1332, he contends that his out-of-court statement to the effect that he was intoxicated was not hearsay because it was offered not for the truth of the matter asserted, but rather to prove circumstantially his state of mind at the time of the incident. We disagree.
[1] Out-of-court statements indicating one's state of mind may or may not be hearsay, depending upon whether such statements show mental state regardless of their truth. Out-of-court statements which circumstantially indicate a state of mind regardless of their truth are admissible as non-hearsay statements. See Prudential Insurance Co. v. Sommers, 148 Colo. 212, 365 P.2d 544; see also Betts v. Betts, 3 Wash. App. 53, 473 P.2d 403. However, out-of-court statements which indicate a state of mind because of their truth are hearsay, see Prudential Insurance Co., supra; Betts, supra, and are admissible only if certain reliability requirements are met to qualify as an exception to the hearsay rule. McCormick on Evidence §§ 294 295 (E. Cleary 2d ed. 1972).
[2] Defendant's contention overlooks this important distinction. Defendant's statement would be admissible as not being hearsay only if the statement would indicate a state of mind regardless of the truth of the statement. However, defendant's statement that he was intoxicated would only be indicative of his state of mind if it were true, and therefore it is hearsay. Prudential Insurance Co., supra; Betts, supra. And, because it reflects a past state of mind, rather than a present one, it does not fall within the state of mind exception to the hearsay rule. See People v. Parga, 188 Colo. 413, 535 P.2d 1127.
Defendant's reliance on People v. Lyles, supra, is misplaced. In that case, in contrast to the situation here, the defendant's statements about his future plans could indicate, regardless of their truth, defendant's ability to cope in society.
Judgment affirmed.
JUDGE BERMAN and JUDGE VAN CISE concur.