Superior Court County: King. Superior Court Cause No: 92-1-05278-8. Date filed in Superior Court: October 1, 1994. Superior Court Judge Signing: Laura Inveen.
Written by: Becker, J., Concurred by: Ellington, J., Kennedy, A.c.j.
BECKER, J. -- Arthur Lee Smith, Jr. appeals his conviction for second degree rape. He assigns error to admission of statements the victim made to others on the night of the rape, and also alleges prosecutorial misconduct. We hold: (1) the court properly admitted the victim's statements under exceptions to the hearsay rule; (2) they were not needlessly cumulative; (3) the State did not comment on Smith's right to be present at trial; and (4) comment on Smith's failure to call his spouse as a witness, while improper, did not have a substantial effect on the outcome of the case. Accordingly, we affirm.
The victim, Ms. Brown, testified that she met the defendant one afternoon at a tavern in Seattle. Smith told Brown that his name was "Nick." After talking for several hours, the two decided to go out for dinner. On the way, they stopped at Brown's apartment. Brown offered Smith a beer and went to use the bathroom.
While Brown was using the toilet, Smith came into the bathroom, grabbed her by the neck and said, "Do as I say or I'll kill you." He then forced her into the bedroom and committed vaginal and anal rape. When he was finished, Smith left the apartment.
A friend of Brown's testified that Brown called her that evening. Crying, Brown gave a "disjointed" account of what happened. At the friend's urging, Brown called 911. A tape of the call, which the jury heard, shows that Brown was sobbing and hysterical.
Police testified that when they arrived at Brown's apartment, she was crying so hard she could hardly speak. Brown would not respond to male officers, or allow them to touch her. Finally, a female fire fighter was able to convince Brown she should go to Harborview hospital.
Dr. Alison Guile testified that she examined Brown that evening. Brown had fresh bruises on her forearms, chest and lower back, and fresh scratches on her chest and back.
The tissue surrounding Brown's anus and vagina was badly bruised and swollen. Dr. Guile testified that Brown's trauma was "far worse" than that of any patient she had examined before. Brown was visibly upset and experiencing a great deal of pain.
Smith had taken a credit card from Brown's purse while inside her apartment. The next day, Smith and his wife visited a travel agent, posing as Mr. and Mrs. Brown. The Smiths booked a four-day trip to Disneyland, using Brown's credit card as payment, but later canceled the trip.
Police searched for Smith over the next few months. Not knowing his real name, they were unable to find him. In August, Brown happened to see Smith coming out of an apartment building on Queen Anne. The property manager identified Smith to the police, but Smith fled the apartment before police could capture him.
As a result of a nationwide fugitive alert, police in Virginia eventually arrested Smith. A Seattle police detective flew to Virginia to transport Smith back. While talking with the detective on the plane, Smith said that he knew he had a "sexual problem with women," and that he was "in the situation he was in now" because treatment attempts had failed. Smith also said his wife did not know what he had done, and he wanted to keep her out of it.
The defense theory at trial was that Brown had consensual sex with Smith, immediately regretted it, and then fabricated the rape allegation. Smith testified that when he went to Brown's apartment, she gave him a beer, poured herself a glass of wine, and joined him on the couch. Eventually they went into the bedroom and had vaginal intercourse that was "totally consensual." Smith admitted that he stole the credit card from Brown's purse while she was in the bathroom. He said the reason he later fled was because he had stolen the card, and because he was on parole from a felony conviction in Alaska.
The jury found Smith guilty of second degree rape.
In addition to Brown's testimony describing the alleged rape, the trial court admitted statements she made to others on the night in question. The court admitted Brown's statements during the telephone call to her friend, a tape of the 911 call, and her statements to a police officer under the excited utterance exception to the hearsay rule.*fn1 The court admitted Brown's statements to Dr. Guile under the medical diagnosis exception.*fn2
Relying on State v. Harper,*fn3 Smith argues Brown's statements to others should have been excluded because they merely served to bolster Brown's trial testimony.
A prior statement, if "offered in evidence to prove the truth of the matter asserted", is hearsay.*fn4 The general rule, ER 802, is that hearsay is inadmissible. There are two distinct rationales by which a witness' prior consistent statement may be admissible notwithstanding the general rule. First, the statement may satisfy one of the exceptions to the hearsay rule found in ER 803. Second, the statement may not be hearsay at all if offered to rebut impeachment. To be admissible by the second rationale, the statement must meet the ER 801 (d)(ii) definition of non-hearsay, as a ...