having been previously duly sworn to speak the truth, the whole truth and nothing but the truth, then further testified as follows:
BY MR. FOGLEMAN: (p. 978)
Q: You are the same Melissa Byers that has previously testified?
A: Yes, sir.
Q: I want to direct your attention to an incident that occurred in February - -
MR. CROW: Your Honor, may we approach the bench?
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)
MR. CROW: Your Honor, previously the Court ruled that the parents would stay out of the courtroom until they testified and then let them stay. She’s been in the courtroom ever since.
THE COURT: There is a specific statute that the victims’ families are permitted to be in the courtroom - -
MR. CROW: The Court excluded her.
THE COURT: I excluded her until her testimony in chief but then I let her back in, and the statute provides that you can so I’m waiving the rule in that regard.
MR. STIDHAM: I anticipate that she’s going to testify about a photograph that someone may have taken of her child.
THE COURT: I don’t have any idea. Are you objecting?
MR. STIDHAM: Yes, your Honor.
MR. FOGLEMAN: What it is, is that about - - sometime between the middle of March and the middle of February the Byers say that they went to the store, were gone about 15, 20 minutes, came home and their son Chris says, “Somebody was taking my picture.”
He described him as having black hair and all black clothes and matches Damien’s description. Jessie said in his statement about the picture of the boys.
THE COURT: What is your objection?
MR. STIDHAM: She cannot specifically identify this person and this is something that is going to be highly prejudicial.
MR. CROW: Your Honor, Jessie’s statement - - that’s what they’re relating it to - - that’s the relevance - - it was three boys not just one picture of one boy.
MR. FOGLEMAN: The kid didn’t say who all was present. He said they took a picture.
MR. CROW: Then that’s all they’ve got, your Honor - -
MR. STIDHAM: There’s a lot of speculation and stuff - -
THE COURT: I’m going to overrule the objection.
(RETURN TO OPEN COURT)
BY MR. FOGLEMAN:
Q: I want to direct your attention back to mid-February to mid-March. Was there an incident about a picture involving your son, a photograph - -
MR. CROW: One more objection, your Honor. I’m sorry.
(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH OUT OF THE HEARING OF THE JURY)
MR. CROW: This is hearsay, your Honor.
MR. FOGLEMAN: Your Honor, it meets Rule 824 (???) - - present sense impression.
MR. CROW: Fifteen, twenty minutes later?
MR. STIDHAM: That’s obviously hearsay.
MR. FOGLEMAN: Let me get the rule here. Eight oh three one, your Honor, present sense impression about a declarant explaining an event immediately after the event.
MR. CROW: It was fifteen or twenty minutes.
MR. FOGLEMAN: As soon as they got back from the store he runs up.
MR. CROW: If they are gone fifteen minutes, it doesn’t matter.
MR. STIDHAM: Keep in mind this is a young child saying this stuff.
THE COURT: I don’t think it qualifies as a present sense - -
MR. FOGLEMAN: Your Honor, it says, “made while perceiving an event or immediately thereafter.” They came back - -
THE COURT: It is usually the old concept of res gestae, an event involving a crime or the circumstances immediately thereafter. That is where the present sense impression exception came into being, circumstances involving the crime itself.
MR. FOGLEMAN: Can we - - it may qualify as an excited utterance. The kid runs up - -
THE COURT: That is usually contemporaneous with the - -
MR. FOGLEMAN: It is while he’s under the stress, stress and excitement, your Honor. “Hey, this guy is taking my picture.”
MR. DAVIS: The way she testifies preliminarily is going to gauge whether it fits or not.
MR. FOGLEMAN: Do you want us to make a proffer and see - - out of the presence of the jury?
THE COURT: Yeah.
(RETURN TO OPEN COURT)
THE COURT: I need the jury to step back into the jury room while the Court conducts a hearing. Again, (p. 982) you’re not to discuss the case.
(JURY LEAVING THE COURTROOM AT THIS TIME)
THE COURT: All right, let the record reflect that this is a proffer of proof outside the hearing of the jury.
PROFFER OF PROOF
BY MR. FOGLEMAN:
Q: Directing your attention to the last of February or the first part of March of 1993, was there an incident involving your son where he said something about a picture being taken of him?
A: Yes, he told us a man had taken a picture of him.
Q: Explain the circumstances of that, where you had been and how long you had been gone.
A: My other son Ryan was home and I needed some milk and cigarettes so there’s a little corner store right down Barton, it’s about two blocks from my house.
So Ryan was upstairs in his room, Chris was playing in the carport, and I said, “I need to run to the store right quick.”
So I left Chris at home. Ryan was there with him. Me and my husband jumped in the car, ran down to the corner store, bought cigarettes and milk and came right back.
When we pulled up in the carport, Chris come running out of the house, and he said, “Mama, there was a man here and he took a picture of me.” (p. 983)
I said, “What do you mean, took a picture of you?”
He said, “He pulled up in the driveway and he scared me so I ran out in the yard so I could get away from him and he took a picture of me.”
And I said, “What did the man look like?”
He said, “He had black hair. He had on a black coat, black shirt, black pants and black shoes, and he drove a green car.”
The way he described it to me - - he was only an eight-year-old child - - the way he described it to me was like a suit, a man in a suit. That’s what I thought - - a man in a suit, you know, and I didn’t go any further than that.
Q: When he ran out of the house, I mean - -
A: He was under the carport playing.
Q: Well, when he ran out of the house to tell y’all is what I’m talking about. What - -
A: He had ran back into the house and had locked the door.
Q: Okay. And when he ran out to tell you about this, what was his demeanor?
A: He was excited. He was frightened. And Ryan was upstairs and, of course, supposed to be watching his baby brother.
MR. FOGLEMAN: That’s out proffer, your Honor.
THE COURT: Any cross examination?
MR. STIDHAM: No, your Honor. We’d just like to renew our objection as to relevancy and hearsay.
THE COURT: As far as relevancy, I wouldn’t have (p. 984) any problem in ruling and finding that the evidence is relevant.
MR. STIDHAM: We’d also argue that its prejudicial effect outweighs any probative value. She can’t say who it was for sure, and the inference is very prejudicial.
Mr. FOGLEMAN: Your Honor, in Mr. Hall’s book he says that, “The interval between the statement and an event is governed by the particular circumstances of each case. The trend is toward expansion of the time interval after an exciting event. Some courts are more liberal in expanding the time period following an exciting event when the declarant is a child.”
In this one is says, “The morning after the event is sufficient where the declarant was three years old.” The statement next day is admissible in this Coe versus State, but four days later is not. “A relaxed standard for young victims is appropriate.”
THE COURT: We have eight oh three twenty-five that goes to sexual contact of a child, which is an exception to the hearsay rule.
I’m not sure it is quite applicable, but it is somewhat analogous.
MR. FOGLEMAN: Your Honor, here’s another one under - - that was under excited utterance. Under (p. 985) present sense impression Mr. Hall refers to Tucker versus State where it talks about the primary justification is spontaneity - - “Spontaneous statement is seen as reliable since there’s not been time to fabricate or misrepresent. It doesn’t require that the event be startling, but the statement must be immediate to the event.” And then it says, “Immediacy is not present when identification is made three days after a robbery.”
We’re talking about the people go to the store, come back and the child tells - -
THE COURT: My understanding of that rule previous to this is that the observation or the experience that would cause an excited utterance or present sense impression usually were those events that occurred simultaneous to or in conjunction with a crime or the event itself, part of the res gestae of it. In close proximity to the event that is the subject matter of the trial, but I’m not sure that that’s completely accurate.
MR. FOGLEMAN: Your Honor, the rule doesn’t say that.
THE COURT: That’s what I’m saying. It could very well be some other event that in itself has independent relevancy to the crime itself. (p. 986)
Do you want something in the record other than your objection as to hearsay?
MR. CROW: Your Honor, the child was no longer - - if the child was even in danger. He had already been inside the house. That part of the excitement’s over. He came out to tell mom and dad what happened. That’s the whole purpose of the hearsay rule is that we can’t cross examine. We can’t bring out - -
THE COURT: The exception is that the declarant is not available. Obviously the declarant is not available.
MR. CROW: That’s why it has to be limited in scope.
THE COURT: The issue is not whether or not there was any danger at all, but the issue is whether or not contemporaneous to that event, the photograph taking, or very shortly thereafter he made that statement. That is the question and whether or not that alone if it has independent relevancy, which I am ruling it does, based upon the testimony of Inspector Gitchell from the statement of the accused. There was some reference to a briefcase and photographs. So it has relevance.
I’m going to rule that it’s admissible, if not as a present sense impression or excited utterance, that (p. 987) it falls under the gamut of eight oh three twenty-four in that the statement is more probative on the point for which it’s offered than any other evidence which the proponent could procure through reasonable efforts and that the interest of justice allows it.
MR. CROW: Your Honor, on that basis I would strenuously point out that the statement talks about one photograph of three boys. That is not what this is about.
THE COURT: That is again a point of argument.
MR. CROW: I understand that, your Honor - -
(THE COURT AND MR. CROW SPEAKING AT THE SAME TIME - - UNINTELLIGIBLE)
THE COURT: You can both argue that - -
MR. CROW: - - twenty-four argument. I think that’s more apropos.
THE COURT: The only question I’ve got is you were aware of this potential testimony and that had been made known to you prior to today?
MR. STIDHAM: Yes, your Honor, but its reliability was certainly an issue.
THE COURT: I’m going to rule that it’s an exception to the hearsay rule, either eight oh three one or two or eight oh three twenty-four.
(JURY RETURNING TO THE COURTROOM)
(RETURN TO OPEN COURT)
CONTINUED REDIRECT EXAMINATION
BY MR. FOGLEMAN:
Q: Miss Byers, directing your attention to the end of February or early part of March of 1993, was there an incident where your child Chris said something about his photograph being taken?
A: Yes, sir. He told us that a man had pulled up in the driveway and had taken a picture of him.
Q: Tell the jury the circumstances about where you had been and that kind of thing.
A: My older child Ryan was home and Chris was playing on the carport. Ryan was upstairs in his bedroom. I needed milk and cigarettes so me and my husband jumped in the car. There’s a little corner grocery that is like two blocks from the house. Chris was busy and playing. We left him playing on the carport, Ryan was in the house upstairs in his bedroom. Ran down to the corner grocery. Got a gallon of milk and two packs of cigarettes and ran right back to the house. We weren’t gone fifteen minutes.
When I came pulling up in the driveway, Chris came running out of the door. He said, “Mommy, there was a man here and he took a picture of me.” I said, “What did the man look like?” He said, “He had on a black coat, black pants, black shoes and a black shirt and he was in a green car.”
Q: Did he say anything about his hair?
A: He said he had black hair.