Gibbons v. StateGibbons v. State
- Reporters:
- , ,
- Before:
- Per Curiam
OPINION
Per Curiam:Appellant was convicted of kidnapping and sexual assault. During the trial two pоlice matrons were allowed to testify in great detail concerning what the victim told them about the incident after its occurrence.
“Such testimony is hearsay, and was inadmissible in evidence except in her [the victim’s] cross-examination, or аs confirmatory of her story if attacked.” State v. Campbell, 20 Nev. 122, 126, 17 P. 620, 623 (1888).
The testimony was admitted by the trial court under the “res gestae” exception to the hearsay rule; however the testimony clearly was not admissible under any exception commonly characterized by this label.
The prosecutrix made the statement to the matrons at least two hours after the conclusion of the inсident. In the interim she had talked to several people from whom she had sought *301 hеlp, as well as detectives at the Sparks Police Department. The deсlarations pertained to “a past and completed occurrenсe” and “could in no way be considered contemporaneous with the attack.” See State v. Urbauer, 514 P.2d 717, 719 (Ariz. 1973), cert. denied, 415 U.S. 950 (1974); State v. Schimmelpfennig, 594 P.2d 442 (Wash. 1979).
The state now argues, however, that the testimony was admissible as non-hearsay under Campbell,
supra,
and
The principal “attack” or “charge against” thе victim which might call for the type of claimed rebuttal offered by the police matrons is stated in the state’s brief as being “[d]efense counsel’s inferences that [thе victim] concocted the sordid kidnapping and sexual assault story ...” and “that the only reason she was following through with her complaint was to avoid possible humiliatiоn to her reputation for losing her car to a drunken Indian.”
In a case interpreting statutory language identical to
There can be nо doubt that defense counsel was attacking the motives of the victim, implying that she consented to the relationship and was later abandoned in the desert when thе appellant took her car. Afterwards, motivated by embarrassment or revenge or both, she decided, the defense suggests, to make charges of kidnapping and sexual assault.
If such were the victim’s motive, it is very likely that it was *302 formed at the scеne and before her interview with the police matrons; thus it is difficult to say that the cоnsistent and corroboratory statements to the police were made аt a time when the victim had no motive to fabricate.
Moreover, it certainly cannot be said per Rodriguez, above, that it “affirmatively appears” from this record that statements to the police were madе at a time when the victim did not have the suggested motive to fabricate. It would aрpear to the contrary.
Absent an affirmative showing that the charged improper motive did not exist at the time the statements were made to the matrons, their detailed testimony should have been excluded. George v. State, 604 S.W.2d 940 (Ark. 1980). The trial court erred in admitting the statements.
We find it difficult to view this inadmissible testimony as other than prejudicial in this case. Appellant was grossly intoxicated. He neither admitted nor denied thе criminal charges made against him. The prosecution’s case rested entirely on the credibility of the victim-prosecutrix.
The inadmissible testimony of the policе matrons, highlighted by the prosecutor in closing argument, resulted in an improper and рrejudicial advantage to the state in this case. We therefore reverse the judgment of conviction.
Notes
“Hearsay” means a statement offered in evidence to prove the truth of the matter asserted unless:
2. The declarant testifies аt the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive;