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finding a statement was an excited utterance when the declarant was "nervous, sweaty, pale, and fidgety," was shaking, and "his eyes were really big"
Summary of this case from State v. WalkerOpinion
No. 3-374 / 02-0673
Filed September 24, 2003
Appeal from the Iowa District Court for Hancock County, Stephen P. Carroll, Judge.
Defendant appeals from a judgment and conviction entered following a trial and jury verdicts of guilty to first-degree murder and first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Scott Brown, County Attorney, and Karen Kaufman, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Creig Shelton was convicted of first-degree murder and first-degree robbery for killing Dale Kelling and stealing money from his safe. He contends statements made by his accomplice after binding and suffocating the elderly man, and slashing his throat were inadmissible hearsay. We find no merit in Shelton's claim the district court committed reversible error in admitting the statements and affirm.
I. Background Facts and Proceedings. Dale Kelling, a seventy-five year old widower, lived alone in the house he owned in Corwith. In October 2001, Creig Shelton and Todd Brandow performed some work for Kelling at his home. The men were paid in cash for their work.
On November 27, 2001, Kelling's neighbor, Pamela Awe, was driving her son to deliver newspapers around the neighborhood. Upon returning home around 7:20 p.m., Awe noticed a green Jeep truck parked in Kelling's driveway. Awe's son, Gerald, noticed the vehicle had Wright County license plates.
When Awe went to Kelling's house for coffee at around 8 p.m., the truck was gone from the driveway. Awe entered the home and called for Kelling. She noticed some pictures and a fireproof box on the floor of the kitchen. When Awe did not find Kelling in the living room, she returned to the kitchen and began making coffee. Noticing the basement lights were on, Awe went downstairs and discovered Kelling's body on the basement floor. Kelling's throat had been cut, his ankles and head were bound with duct tape, and a plastic bag covered his head. Awe dialed 911 for assistance. Missing from Kelling's home was a collection of old bills and coins.
On November 27, 2001, Shelton and his brother-in-law, Jason Hively, met at the home of Shelton's grandmother where they retrieved a pellet gun. They then accompanied Shelton's mother, Joline Johnson, when she went home. Hively was staying at Johnson's home. The men also went with Johnson on a trip to Belmond and back before leaving Johnson's home in Hively's green Jeep truck.
Shelton and Hively returned to Johnson's home shortly after eight o'clock that night. Hively appeared excited, distressed, and was shaking. Hively told Johnson that he had held a man's arms above his head while Shelton cut the man's throat. Hively also told Johnson "we had to kill him, we had to kill him because we tried to smother him several times and he wouldn't die." Johnson asked Shelton how he could have done such a thing, to which he responded by saying, "Just quit, mom. Don't, don't." A short time later, Johnson again asked Shelton how he could cut a man's throat. Shelton responded by waving his hand back and forth in a quick, cutting motion. That same evening, Johnson observed both men in a bedroom with coins and bills on the bed. She specifically noticed silver certificates and buffalo nickels among the items.
Hively and his brother, Chad, abandoned Hively's green Jeep truck on a gravel road and reported the vehicle as stolen. Chad also helped Hively throw money into sewer outlets. The money matched the description of the money Johnson saw on the bed and the money which was missing from Kelling's fireproof box.
On November 28, Shelton asked his girlfriend what she thought about people who killed other people. He also told her there was one thing she did not know about him.
A DCI agent seized glasses from the kitchen counter and cigarette butts from the kitchen ashtray in the Kelling home. The items were submitted for DNA testing. DNA discovered on one of the glasses was consistent with Shelton's DNA, as was DNA discovered on one of the twelve cigarette butts in the ashtray.
On December 3, 2001, the State filed a joint trial information charging Hively and Shelton with first-degree murder and first-degree robbery. On January 17, 2002, Shelton filed a motion in limine, challenging the admission of hearsay statements made by Hively as violating his constitutional right to confront witnesses against him. On February 12, 2002, the State filed a motion for ruling pursuant to Iowa Rule of Evidence 104( a). The State sought a ruling on the admissibility of statements made by Hively as an excited utterance and an adoptive admission under Iowa Rule of Evidence 5.803(2) and rule 5.801( d)(2). A hearing was held February 23, and on March 7, the district court ruled that Hively's statements were admissible as both an excited utterance and an adopted admission.
Hively and Shelton's trials were severed, and a jury trial commenced on March 1, 2002. On March 15, the jury returned verdicts of guilty on both counts. On April 24, Shelton was sentenced to life imprisonment and an indeterminate term not to exceed twenty-five years. The sentences were ordered to be served one after the other.
II. Analysis. Shelton contends the district court erred in admitting into evidence Hively's statements to Johnson that that he had held a man's arms above his head while Shelton cut the man's throat and that they had tried to smother the man but he wouldn't die, so they had to kill him. Shelton contends these statements, admitted through Johnson's testimony, were inadmissible hearsay. Shelton argues the district court erred in admitting the statements as an adopted admission and an excited utterance. He further argues that admission of the statement violates his Sixth Amendment right to confrontation.
Hearsay is as tatement, other than one made by the declarant while testifying at trial or a hearing, offered to prove the truth of the matter asserted. Iowa R. Evid. 5.801( c ). Evidence which falls within the definition of hearsay is not admissible except as permitted by constitution, statute or rule. Iowa R. Evid. 5.802. The State, as the proponent of the hearsay, has the burden of proving it falls within an exception to the hearsay rule. State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001). We review hearsay rulings for correction of errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). We review confrontation clause claims de novo. State v. Hoeck, 547 N.W.2d 852, 856 (Iowa Ct.App. 1996).
Under Rule of Evidence 5.803(2), "[a] statement relating to a startling event or condition made while the defendant was under the stress of excitement caused by the event or condition" is an exception to the hearsay rule. To be considered an excited utterance, the statement must be made under the influence of the excitement of the incident rather than upon reflection or deliberation. Cagley, 638 N.W.2d at 681. A lapse of time between a startling event and an excited utterance does not necessarily foreclose admission of the statement. See State v. Augustine, 458 N.W.2d 859, 861 (Iowa Ct.App. 1990) (holding a statement made within approximately one and one-half hours of the event was admissible as an excited utterance).
In determining whether the excited utterance exception applied, the trial court should consider:
(1) the time lapse between the event and the statement, (2) the extent to which questioning elicited the statements that otherwise would not have been volunteered, (3) the age and condition of the declarant, (4) the characteristics of the event being described, and (5) the subject matter of the statement.
State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). The decision to apply the exception lies largely within the discretion of the trial court. Id. We give deference to the trial court's factual findings, upholding them if supported by substantial evidence. Cagley, 638 N.W.2d at 681.
In analyzing whether Hively's statements to Johnson were made under the stress of excitement caused by the killing of Dale Kelling, the district court noted the proximity in time between the murder and the statements. A green Jeep was observed in Kelling's driveway at approximately 7:20 p.m. on November 27, 2001, and Hively and Shelton arrived at Johnson's home shortly after 8:00 p.m. Witnesses described Hively as appearing nervous, sweaty, pale, and fidgety. Hively was also described as shaking and "his eyes were really big." Hively volunteered the statements to his mother-in-law that he had held a man's hands above his head while Shelton slit his throat, and that they had to kill him because they tried to smother him several times and he wouldn't die. The district court determined these statements were made while Hively was under the stress of excitement caused by the killing, and therefore the statements were admissible under the excited utterance exception to the hearsay rule. We hold that the trial court did not abuse its discretion in admitting evidence of Hively's statements implicating defendant under the excited utteranceexception. Having so determined, we need not consider whether either statement was admissible under the adopted admission theory.
We then turn our attention to Shelton's claim that admission of Hively's statements violates the Confrontation Clause. The Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. State v. Castadena, 621 N.W.2d 435, 444 (Iowa 2001). However, evidence that falls within a firmly rooted hearsay exception does not violate the Confrontation Clause. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 608 (1980). Because an excited utterance is a firmly rooted hearsay exception, there is no confrontation clause violation. White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860 n. 8 (1992). Accordingly, we conclude, as did the district court, that the admission of Hively's statements did not violate the Confrontation Clause.