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State v. Ross

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
BILLY WAYNE ROSS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-03219-1. Date filed: 10/24/94. Judge signing: Hon. George T. Mattson.

PER CURIAM. -- Billy Ross appeals his convictions for felony harassment and two counts of assault. He contends the court abused its discretion in admitting certain hearsay statements as excited utterances.

He also argues that the court's no-contact order infringes his right to marry, and that the court lacked authority under RCW 10.99 to condition the length of the no-contact order on his completion of a treatment program.

Because we conclude that any error in admitting the hearsay was harmless, the no-contact order does not unconstitutionally infringe upon Ross' right to marry, and Ross' challenge based on RCW 10.99 is misplaced, we affirm.

FACTS

On May 14, 1995, Seattle police responded to and investigated a domestic altercation at the residence of Mary Burke. As a result of the investigation, Billy Ross was charged with two counts of assault and one count of felony harassment.

Prior to trial, the defense moved to exclude statements Burke made to the officers at the scene. The court then held a preliminary hearing to determine whether the statements were admissible as excited utterances.

Officer Robinson testified that when he arrived at Burke's residence, he heard a woman yell "stop" several times. She also yelled "help me."

The woman's voice was somewhat muffled, and there were thumping noises coming from inside the residence.

When the police knocked, the woman again yelled "help me." The door suddenly opened and Burke ran out and grabbed Robinson. She was crying and asking Robinson to save her because Ross was trying to kill her. Speaking rapidly and excitedly, she told Robinson that Ross had tried to strangle her, had put a butcher knife to her throat, and had threatened to kill her and her daughter. Robinson noticed that she had "extremely bad bruising or redness, scratches and swelling" around her throat. Several of her fingernails were broken off, and her fingers were bleeding. He also noticed blood on Ross and a serrated kitchen knife near his feet.

Three or four minutes after Burke's initial statements, Robinson and Burke moved inside the apartment. Although Burke had calmed some, she was "still very nervous and very upset" and was crying and physically unable to light a cigarette. Robinson asked her to again tell him what had happened.

She repeated her earlier statements, but gave additional details. Burke's statements inside and outside the apartment took a total of ten to fifteen minutes.

Burke testified that she had been choked, but that someone named "Rick", whose last name she did not know, was the assailant. She claimed that Ross arrived after Rick left, and that she and Ross got into an argument. When the police arrived, she decided to frame Ross with the assault because she was angry at him for having an affair. She testified that Ross did not assault her or threaten her with a knife. She admitted being "real upset" and crying when the officers arrived.

The trial court found Officer Robinson's version more believable and concluded that the excited utterance criteria were satisfied as to the statements inside and outside the apartment. The court stated:

The court is satisfied that given the descriptions in question, that both parts of that described contact with the officers are the product of the startling event. They are very close in time, this is not a situation in which she appears in any way to have been responding to whatever efforts could initially be made to calm her down. And she's essentially repeating rapidly...a ...


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