Johnson v. State

GETTY, Judge. This appeal is from judgments of conviction of Guy R. Johnson and Gregory Pierson, entered after a court trial in the Circuit Court for Baltimore City (Karwacki, J.). Appellants were charged with rape, burglary and robbery arising out of an incident involving a brutal attack on an 89 year old woman in her home. They were acquitted of rape but convicted of burglary and robbery.

Johnson was sentenced to a total of twenty years imprisonment, and Pierson was sentenced to a total of thirty years imprisonment. Both appellants present the following questions for this Court’s review. 1. Did the court err in admitting hearsay statements (A) of a witness who was incompetent at the time of trial, without determining whether or not she was competent at the time of making the statements; and (B) not properly within the “excited utterance exception” to the rule against hearsay? 2. Did the admission into evidence of the hearsay statements deprive appellants of their right to confrontation? 3.

Was the evidence sufficient to sustain the charges? A brief review of the facts presented at trial is necessary. On May 13, 1983, Mary Littleton, then 89 years of age and ⁴⁸⁹ living alone, was attacked and robbed in her Baltimore City home. Appellants were charged with the crimes shortly thereafter.

At appellants’ trial, Earl Fisher, a neighbor of the victim, testified that on the night of the incident he saw two men, whom he identified as the appellants, walking up the street where both he and the victim lived. Fisher observed appellants looking into the windows of several dwellings and “trying the gate to someone’s yard.” At one point, Fisher heard Pierson tell Johnson, while pointing to the victim’s house, “no not there .. over here, dummy.” Fisher stated that he saw appellants enter the victim’s yard on two separate occasions that night. Fisher and his wife went for a walk, and one-half hour later they heard that Mrs. Little-ton had been attacked and was on her way to a hospital. Fisher testified that the first time he noticed appellants in the victim’s yard, five minutes elapsed before he saw them leave; the second time he saw them in her yard, ten minutes elapsed before they departed.

James Creighton, who also lived on the same street as the victim, testified that at 11:30 p.m. on the night of the incident a man, whom he identified as appellant Johnson, approached him and asked him for a cigarette. A short time later, a second man, whom Creighton identified as appellant Piersen, approached Johnson and said, “Come on, she’s coming.” The victim then came running around the corner. The two men immediately ran away. Creighton testified that the victim ran toward him wearing only an open housecoat.

According to Creighton, she was “scared, a little ‘lerious,’ shaking” and “just a complete nervous wreck.” The victim told Creighton she had just been beaten up and robbed. Creighton called the police and later identified Johnson and Pierson from police “mug shots.” Officer Bowen of the Baltimore City Police Department testified that he arrived at the scene of the robbery and spoke with several people including the victim. He stated that the victim was very upset and that she was bleeding ⁴⁹⁰ from the ears and from several marks on her face. Bowen related that when he arrived, the victim was yelling that she had been beaten and robbed.

He got her “calmed down a bit,” and “asked her point blank what happened.” She responded that two people jumped her in her home, beat her repeatedly and robbed her. Bowen also investigated the scene of the crime and found, inter alia, that a window in the rear entrance door had been broken. The victim’s son testified that the same window had been intact the morning before the robbery. The State’s case was concluded with the introduction of a medical report on the victim’s condition which included her statement to the treating physician that she had been sexually assaulted as well as beaten during the robbery.

At the beginning of the trial the court was alerted to the fact that the State would not be calling the victim to testify. At that time the victim was ninety years of age and confined to a nursing home. The State conceded that she was incompetent to testify at trial. The State sought to admit several statements made by the victim shortly after the incident under the excited utterance exception to the Hearsay Rule.

Defense counsel argued to the trial court that before such statements could be admitted into evidence, it was necessary for the court to determine that the victim was competent (i.e., of sound mind) at the time the statements were made. The court refused to make this inquiry stating that because the statements sought to be admitted were excited utterances, it was immaterial whether the out-of-court declarant was competent at the time of making the statements. We agree with the holding of the trial court, but not for the reasons assigned by the court. IA Necessity of determining competency of out-of-court declarant at time of making excited utterance.

The rationale for the excited utterance exception to the Hearsay Rule was explained by Dean Wigmore as follows: “This general principle is based on the experience that, under certain external circumstances of physical shock, a ⁴⁹¹ stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” 6 Wigmore on Evidence § 1751 (3rd Ed. 1940). As more recently analyzed in McCormick’s Handbook of the Law of Evidence (3d Ed. 1984) at 855: “The rationale for the [excited utterance] exception lies in the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication. This factor also serves to justify dispensing with any requirement that the declarant be unavailable, because it suggests that his testimony on the stand, given at a time when his powers of reflection and fabrication are operative, is less reliable than his out-of-court declaration.

The entire basis for the exception is, of course, subject to question. While psychologists would probably concede that excitement minimizes the possibility of reflective self-interest influencing the declarant’s statements, they would likely question whether this might be outweighed by the distorting effect of shock and excitement upon the declarant’s observations and judgment. Despite the doubt concerning its justification, however, the exception is well established.” (Footnotes omitted.) In Moore v. State, 26 Md.App. 556 (1975), 338 A.2d 344 , we expressly held that testimonial incompetence is not a bar to admitting into evidence spontaneous declarations of a ⁴⁹² young child. Id. at 561, 338 A.2d 344 .

We reached a similar result in Smith v. State, 6 Md.App. 581 (1969), 252 A.2d 277 , and in Jackson v. State, 31 Md.App. 332 (1976), 356 A.2d 299 . 1 In Moore , we quoted Wigmore, Sec. 1751, p. 156, to-wit: “Does the disqualification of infancy ... exclude declarations otherwise admissible? It would seem not; because the principle of the present exception obviates the usual sources of untrustworthiness ... in children’s testimony; because, furthermore, the orthodox rules for children’s testimony are not in themselves meritorious ... and, finally, because the oath-test, which usually underlies the objection to children’s testimony, is wholly inapplicable to them.” The case sub judice involves an adult admittedly incompetent at the time of trial. Whether the incompetency was due to senility or other causes is not clear from the record. The