Peterson v. State

76 S.W.3d 845, 349 Ark. 195, 2002 Ark. LEXIS 347
CourtSupreme Court of Arkansas
DecidedJune 6, 2002
DocketCR 01-993
StatusPublished
Cited by17 cases

This text of 76 S.W.3d 845 (Peterson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peterson v. State, 76 S.W.3d 845, 349 Ark. 195, 2002 Ark. LEXIS 347 (Ark. 2002).

Opinion

Ray Thornton, Justice.

. Appellant, J. M. Peterson, was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. This conviction stems from the murder of Lisa Peterson, appellant’s ex-wife, on July 4, 1999. This murder occurred while Ms. Peterson was attempting to retrieve clothes from her home, which she was forced to leave because appellant had previously threatened her life.

On January 18, 2001, appellant filed a motion in limine seeking to exclude certain testimony. Appellant argued that the testimony should be excluded because it was inadmissible hearsay.

On January 22, 2001, a hearing was held on appellant’s motion. At the hearing, Gena Wilfong testified. Ms. Wilfong was Lisa Peterson’s workplace supervisor. Ms. Wilfong testified about events that occurred on July 2, 1999. Specifically, Ms. Wilfong stated that Ms. Peterson told her that on July 2, 1999, appellant came to her home at approximately 2:00 a.m., threatened the life of their daughter, bound Ms. Peterson’s legs and hands with duct tape, put her into his car, and drove her around for approximately two hours with a gun pointed to her head threatening to kill her. Ms. Peterson relayed these events to Ms. Wilfong shortly after 8:00 a.m.

Appellant argued that Ms. Wilfong’s testimony was inadmissible hearsay and that it should be excluded. The trial court denied appellant’s motion and allowed Ms. Wilfong’s testimony pursuant to Rule 803(2) of the Rules of Evidence based on its findings that the statements made by Ms. Peterson to Ms. Wilfong were admissible pursuant to the “excited utterance” exception to the rule against hearsay.

On January 30, 2001, appellant’s jury trial began. At trial, Deshawn Gilmore, Ms. Peterson’s nephew, who was present when appellant shot Ms. Peterson, testified about the events surrounding the murder. Mr. Gilmore testified that he heard a gun shot and then saw Ms. Peterson running down the stairs. He further testified that after he heard a second gun shot Ms. Peterson collapsed. After Ms. Peterson collapsed, Mr. Gilmore saw appellant standing over her body with a gun in his hand. Finally, Mr. Gilmore testified that he saw appellant drag Ms. Peterson into the house. Ms. Peterson was then shot six more times in the head.

The jury determined that appellant was guilty of capital murder. On February 16, 2001, the trial court entered the judgment and commitment order sentencing appellant to life without the possibility of parole to be served in the Arkansas Department of Correction.

It is from this conviction that appellant appeals. He does not challenge the sufficiency of the evidence. Appellant raises one point on appeal. We affirm the trial court.

In his only point on appeal, appellant argues that the trial court erred in allowing Gena Wilfong to testify about statements made by Ms. Peterson prior to her murder. Appellant argues that Ms. Wilfong’s testimony, which contained events relayed to her by Ms. Peterson, was inadmissible hearsay that the trial court should have excluded.

Pursuant to Rule 801(c) of the Rules of Evidence, “ ‘hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Such testimony is generally inadmissible evidence. See Rule 802 of the Arkansas Rules of Evidence.

In the case now before us, appellant objected to Ms. Wilfong testifying as to statements made to her by Ms. Peterson. These statements concerned events that occurred on July 2, 1999. Specifically, the testimony described appellant allegedly committing battery against Ms. Peterson and kidnapping Ms. Peterson. The trial court denied appellant’s motion to exclude the testimony. On appeal, the State argues that Ms. Wilfong’s testimony was admissible pursuant to Rule 803(2) of the Rules of Evidence. This rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Id.

There are several factors to consider when determining if a statement falls under this exception: (1) the lapse of time, (2) the age of the declarant, (3) the physical and mental condition of the declarant, (4) the characteristics of the event, and (5) the subject matter of the statement. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); see also Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994) (adopting these factors from the Eighth Circuit’s decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980)). We have noted that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive of the application of the excited utterance exception to the hearsay rule. Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992).

For the exception to apply, there must be an event which excites the declarant. Fudge, supra. Additionally, “to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.” Fudge, supra (quoting Iron Shell, supra). The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement rather than of intervening reflection or deliberation. Fudge, supra. However, we have noted that the trend is toward expansion of the time interval after an exciting event. Id. We have also noted that continuing emotional or physical shock and loss of consciousness, unabated fright, isolation and other factors may also prolong the time, making it proper to resort to Rule 803(2), despite long lapses of time. Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991).

The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Fudge, supra. It is within the trial court’s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Id.

Remaining mindful of the applicable legal principles, we now consider whether the trial court properly admitted Gena Wilfong’s testimony. A trial court is accorded wide discretion in evidentiary rulings. Flores, supra. We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id. Ms. Wilfong’s testimony in pertinent part was as follows:

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Bluebook (online)
76 S.W.3d 845, 349 Ark. 195, 2002 Ark. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-v-state-ark-2002.