Mouzone v. State

Cole, J., delivered the opinion of the Court. We shall in this case determine whether a statement given to police by a witness to a double murder five hours after the incident took place and after almost two hours of questioning by a police officer falls within any exception to the rule against hearsay. We set forth the facts crucial to our discussion of the issue. At approximately two o’clock in the afternoon of August 31,1979, Anna Byrd happened to be in the vicinity of North Avenue and Charles Street in Baltimore City.

While there she heard a loud noise, similar to a car back-firing. She turned around to see a woman lying on the sidewalk and a man staggering, and then fall, partially on the sidewalk and ⁶⁹⁴ partially in the street. She also saw a man run past her, leaving the scene. Officer Michael Sabo of the Baltimore Police Department responded to North Avenue and Charles Street a few minutes later.

Upon arrival he found Carolyn Williams and Bernard Banks lying on the sidewalk, both with apparent gunshot wounds, and Anna Byrd having an epileptic seizure. Byrd was taken from the scene to the hospital where she was treated for her seizure. Williams and Banks suffered fatal injuries. Byrd remained at the hospital for approximately three hours, part of which time she was unconscious.

Upon regaining consciousness she was given medication, discharged, and then taken to the Baltimore City Police Headquarters Building where she was interviewed by Detective Danko of the Homicide Division. The interview began at 5:28 p.m. During the course of the interview, Byrd was shown several photographs and asked if she could identify any of the men depicted therein as the one she saw running from the shooting. She picked out the picture of Clarence Mouzone.

She also answered a series of questions about the incident which was reduced to writing and signed by her. The statement concluded with the question "After you read this statement and find it true and correct, will you sign it?” Immediately thereafter appear Detective Danko’s annotation that the statement was concluded at 7:10 p.m. and Anna Byrd’s signature and annotation that it was signed at 7:20 p.m. Subsequently, Mouzone was arrested and the case came to trial. During the trial the State called Byrd to the stand.

Seeking to introduce the statement Byrd had given to the police, the prosecutor asked whether the statement was truthful as far as she knew at the time it was given. Byrd replied in the negative. The prosecutor thereupon directed a series of questions to Byrd, attempting to establish that the statement accurately represented the facts as Byrd knew them at the time she related them which, he contended, ⁶⁹⁵ would be sufficient to allow him to introduce the statement as past recollection recorded. He so moved and the trial judge reserved her ruling to allow defense counsel the opportunity to cross-examine Byrd.

The defense counsel sought to attack the admissibility of the statement as being coerced and therefore inadmissible. Accordingly, he moved to have an evidentiary hearing out of the presence of the jury to determine its voluntariness. The trial judge granted the motion. At this voluntariness hearing, the prosecutor called to the stand Detective Danko.

He testified that before he began questioning her she was trembling and shaking but that by the time he started questioning her (he talked to her ten to fifteen minutes before the statement) she had settled down: "she had lost that shakiness, and she was more responsive and slower in her speech.” He further testified that she was calm and cooperative. Anna Byrd was also called to the stand during this hearing. After repeatedly asserting that Mouzone was not the man she saw running from the scene of the murders, she somewhat equivocally admitted that the statement reflected the truth as she knew it when the statement was signed. She also testified that although she was nervous, shaken, and still suffering some of the effects of her seizure, she had calmed down a "little bit” while talking to the police officer.

The trial judge ruled that, as Byrd had "reluctantly, obviously, said several times that |the statement] was true or she thought it was true at the time she gave it,” the statement was admissible as past recollection recorded and determined that any question as to voluntariness went to the weight of the evidence, and therefore was a jury question. Mouzone was subsequently convicted of two counts of first degree murder and related offenses and sentenced to two consecutive life sentences plus two concurrent fifteen year sentences to run consecutive to the life sentences and two three-year sentences, concurrent with each other and the other sentences. He appealed his convictions to the Court of ⁶⁹⁶ Special Appeals, contending, inter alia, that the statement was not admissible as past recollection recorded and that it was inadmissible because involuntary. The Court of Special Appeals affirmed, Mouzone v. State, 50 Md. App. 81 , 436 A.2d 916 (1981), holding that the statement was admissible, but not as past recollection recorded.

The intermediate appellate court found that because the statement was not offered by the witness who desired to use it, it could not be a past recollection recorded. However, the court did find that the facts of the case would support the admissibility of the evidence under the excited utterance or res gestae exception to the hearsay rule. The intermediate appellate court concluded that Byrd was still suffering from the shock of what she had seen and experienced, impairing her reflective capabilities, thus making her statement contemporaneous with the commission of the crime, and thereby lending an aura of trustworthiness to the contents of her declaration. We granted Mouzone’s petition for certiorari.

Mouzone contests the holding of the Court of Special Appeals on three grounds. First, he maintains that the requirements of the excited utterance exception have not been satisfied, pointing out that the statement was given five hours after the exciting event, after two hours of questioning, and contains language to the effect that it was reviewed and understood by the declarant. He next contends that the statement was coerced and, therefore, inadmissible. 1 He lastly asserts that the statement was not within the exception encompassing extrajudicial identification. Hearsay, as a rule, is withheld from consideration by the factfinder because of its inherent untrustworthiness.

Exceptions to the rule usually involve those situations where circumstances lend credibility to the statement, thus vitiating the reason for the rule. The res gestae or excited utterance exception is justified on this basis. McCormick, Evidence § 288 (2nd ed. 1972). "Evidence of declarations and acts, which are an immediate accompaniment of the act charged ⁶⁹⁷ and so closely connected with the main fact as to constitute a part of it, and without which the main fact might not be properly understood, are admissible as a part of the res gestae.” Wilson v. State, 181 Md. 1, 3-4 , 26 A.2d 770 (1942).

The essence of the excited utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned. It requires a startling event and a spontaneous statement which is the result of the declarant’s reaction to the occurrence. McCormick, Evidence § 297 (2nd ed. 1972). The rationale for overcoming the inherent untrustworthiness of hearsay is that the situation produced such an effect on the declarant as to render his reflective capabilities inoperative.

See Wright v. State, 88 Md. 705 , 41 A. 1060 (1898). See also, McCormick, supra, § 297. The admissibility of evidence under this exception is, therefore, judged by the spontaneity of the declarant’s statement and an analysis of whether it was the result of thoughtful consideration or the product of the exciting event. We propose no precise formula to determine what lapse of time between the exciting event and the declaration is sufficient to exclude an utterance as not being a part of the res gestae.

Rather we reaffirm our statement in Wilson v. State, supra, 181 Md. at 4 that The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of time, but by causal connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it. A few cases will illustrate this point.

In State v. Stafford, 237 Iowa 780 , 23 N.W.2d 832 (1946), a woman was severely beaten by her husband in a pasture ⁶⁹⁸ some distance from their home. She escaped from her husband and spent the night wandering around in the country. About fourteen hours after the assault she came to the home of some relatives, who did not recognize her, as she had been beaten so badly. When asked what happened, she replied that her husband had tried to kill her.

The statement was admitted as part of the res gestae. The court noted that the element of time was important "merely as bearing on the question of spontaneity,” and held that, under the circumstances, her statement stood "the test of spontaneity, and [was] a natural expression of what had happened to her.” Id. at 835-36 . See also, Gibbs v. Wilmeth, 261 Iowa 1015 , 157 N.W.2d 93 (1968); Sadowski v. Eazor Express Inc., 213 Pa. Super. 471 ,