367 N.E.2d 927 | Ohio Ct. App. | 1977
Eddie Dickerson, defendant, was indicted on one count of first degree murder, R. C.
We affirm. *256
Crenshaw immediately approached Willie Jones and asked, "Did he shoot you, man." Counsel for defendant objected but the court overruled the objection on the ground that the response was part of the res gestae. Crenshaw then testified that decedent said, "Yes, he stung me."
During the cross-examination of Crenshaw, Crenshaw was asked whether there could have been another gun in the area besides that seen with defendant. Crenshaw answered, "Could have been." Counsel for defendant then asked Crenshaw whether many people in the neighborhood carried guns, whether Crenshaw, Willie (decedent), Dennis, "Freddie," or Mr. Burton carried guns. Objections to all these questions were sustained, and counsel for defendant was instructed "* * * to resist [sic] from this type of examination." *257
This recital of the evidence eptomizes the facts material to the appeal.
Excited utterances are admissible into evidence as an exception to the hearsay rule when: (a) there is an occurrence or event "* * * sufficiently startling to render normal reflective thought processes of an observer inoperative," and (b) "* * * the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought." See McCormick on Evidence 704, Section 297 (2d ed. 1972). This exception to the hearsay rule is premised on the "special reliability" provided by the excited condition which results in the "suspension" of the declarant's powers of thought and impedes the probability of "fabrication." Id. Thus, the admissibility of such utterances depends upon the answers to two basic questions. Was the time between the exciting event and the declaration short enough to rebut the probability of calculation? Were the circumstances such that the excitement induced was a likely control producing spontaneity and resultant reliability? An ancillary issue, on the facts of this case, is whether a declaration that comes in response to a question is rendered inadmissible simply because elicited by a question. A number of cases in other jurisdictions have held that the fact that the utterance is a response to a question does not necessarily render it inadmissible if otherwise evidentially competent.2 Of course, whatever *258 prompting may quicken the response is evidence bearing on spontaneity and, consequently, relevant to credibility.
However, credibility is only a slight problem in this case. The decedent was shot in the stomach. Moments later and immediately after the defendant had fled the scene, the witness Crenshaw approached decedent. He (Crenshaw) asked, obviously referring to defendant, "Did he shoot you, man?" Decedent's response was "Yes, he stung me." Although decedent made his declaration in response to a question, the remark was admissible as an excited utterance because there was close proximity in time between the shooting and the declaration and because, under the circumstances, the statement was almost certainly not a result of reflection or fabrication. For the answer was elicited during a period that had to be intensely exciting. Thus, the reliability of the declaration was certified by those qualities which undergird the policy of the excited utterance exception to the hearsay rule. The trial court did not err in overruling the objections to the question and answer.
The admission of the declaration was not a violation of defendant's
"* * * There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses."4
The present case presents one of those "analogous situations."
The first and second assignments of error are not well taken.
Some of the questions posed by defense counsel, to which objections were sustained, may have been relevant to the issue of whether defendant fired the lethal gunshot. Others were quite general. Questions on cross-examination about the presence of other weapons at the scene of the shooting may have been in order. However, the relevance of the questions on the facts here may be in doubt.5 In any event, the error, if there was error, was harmless beyond a reasonable doubt in the light of the overwhelming evidence of defendant's guilt, Chapman v.California (1967),
The third assignment of error is not well taken.
At the relevant time and place, defendant was seen *260
pointing a gun at decedent and ordering him to, "Give it up." A shot was fired. Decedent was wounded. Defendant was seen standing near him with a gun. Defendant took money from him. No other persons were seen near decedent at the time of the shooting. Immediately after the shooting, defendant fled.6
With the evidence in this stance, there is no reasonable postulate to support the defendant's innocence. The evidence is irreconcilable with any theory except that of defendant's guilt. See State v. Kulig (1974),
The fourth assignment of error is not well taken. The judgment is affirmed.
Judgment affirmed.
JACKSON and PATTON, JJ., concur.
"I. The trial court committed prejudicial error by admitting hearsay evidence.
"II. The trial court's admission of out-of-court statements violated defendant's right to confrontation as guaranteed by the
"III. The trial court committed prejudicial error by limiting the scope of defendant's cross-examination.
"IV. The verdict is contrary to the manifest weight of the evidence."
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