Davis v. State

JAMES S. GETTY, Judge. Following a jury trial in the Circuit Court for Baltimore City, Larry Davis, the appellant herein, was convicted of second degree assault and sentenced to five years imprisonment. He was acquitted on charges of rape and kidnapping. The basis of his appeal is the admission into evidence of hearsay testimony from two State’s witnesses.

Appellant maintained that he had consensual intercourse with the complainant. 1 Officer Robert Neuens, a Baltimore City policeman, testified that he responded to an incident at 2860 West Mulberry Street at 9:00 p.m. on September 6,1997. In an alley behind the house, Officer Neuens observed another officer standing over a man and a woman who were partially disrobed. The man was on top of the woman until removed by the officers. Officer Neuens testified that the victim was hysterical and “it took me 10-15 minutes to calm her down.” She then gave Officer Neuens the following account of what occurred: She said they were across the street ... at the Merit gas station when the gentleman came up and said he knew her, and if she wanted to make a hundred dollars and have some cocaine. ⁷¹⁶ And she stated she did not know him and told [him] to leave [her] alone — leave her alone.

She stated at which time he led her forcefully ... into the alley.... She stated that he hit her and kicked at her.... He removed his clothes and penetrated her vagina with his penis. Appellant’s contention was that Officer Neuens’s testimony was hearsay, and that it was not admissible as an excited utterance exception to the hearsay rule, because the victim had calmed down before she told the officer what happened.

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Md. Rule 5-801(c). Accord State v. Harrell, 348 Md. 69, 76 , 702 A.2d 723 (1997). A statement made under such circumstances that the exciting influence of the occurrence produced a spontaneous and instinctive reaction on the part of the declarant who is still emotionally engulfed by the event is, however, admissible, within the trial court’s discretion.

See Harmony v. State, 88 Md.App. 306, 319 , 594 A.2d 1182 (1991). The rationale behind the excited utterance exception is that the startling event suspends the declarant’s process of reflective thought, thereby reducing the likelihood of fabrication. Harrell, supra, at 77 , 702 A.2d 723 . One would be hard pressed to envision a more startling event than being dragged into an alley, thrown to the ground, and assaulted by an unknown assailant.

Officer Neuens testified that the victim was “calmed down” to where she could answer his questions, but that she was still emotionally agitated by the events she had experienced a short time before the police arrived. Nothing more is required to establish an excited utterance. Maryland courts have accepted as excited utterances statements made several hours after the event. Harmony, 88 Md.App. at 319 , 594 A.2d 1182 .

Time alone is not the sole criterion. The emotional state of the victim at the time of her response governs admissibility. In this case, the time from the star ⁷¹⁷ tling event to the recitation by the victim was a scant fifteen minutes. Appellant’s second issue is equally lacking in merit.

He alleges that the testimony of Rev. Cranston Brooks should have been withheld because he could not identify the individuals whose statements he overheard. Rev. Brooks said he heard the following statements coming from the alley behind his church: A female voice saying “don’t do that, please don’t do that, don’t hurt me,” followed by a male voice saying “shut up, shut up,” accompanied by profanity. He observed appellant and the victim in the alley several minutes later when the police arrived. The trial court admitted the testimony under Md. Rule 5-803(b)(8) or 5-804(b)(5); appellant contends it was hearsay.

Rule 5~803(b)(3) relates to the “then existing mental, emotional, or physical condition of the declarant’s then existing state of mind.” Rule 5-804(b)(5) permits reliable circumstantial evidence where the declarant is unavailable as a witness. The State cites Carbo v. United States, 314 F.2d 718 743-44