I promised I would approach the bench before I talked about the letter or whatever and what I wanted to do is before I mention that I want to have a 402 hearing on that aspect. But there is a couple things I wanted to bring up before the lunch hour and there--a couple of these statements that will be made by him about watching TV or whatever, he sees something on the television or something like that, I think is state of mind, spontaneous utterances that will be exceptions to the hearsay rule. And obviously I don't want to argue in front of the jury, so I want to mention that to your Honor again.
She was going to say that her father was watching TV and would talk to the TV I think she would indicate that a couple times he said "How can anybody say I would do that" or "How would anybody think I would be guilty" or something like that, words to that effect when he is talking to the TV, spontaneous utterances and state of mind and exception to the hearsay rule as an example. And I would like to be able to marshal those particular actual statements.
It doesn't qualify in any way, shape or form as a spontaneous utterance. No. 1, we are not talking about a startling event. He has already been questioned by the police and knew exactly what was going on. Self-serving statement with no indicia of trustworthiness made for the benefit of all of them around in response to the accusation on the television at the time. There is nothing about that that qualifies as a spontaneous utterance and I would remind also the Court of its own ruling pertaining to Denise Brown's response that her sister was murdered, the People's argument that that was a startling event, and she had no knowledge of anything having occurred at that point when Tom Lange made the notification, and her immediate response was "He did it, he did it, that son of a bitch did it." And now we have a situation that is far less credible in terms of its trustworthiness where someone has already been obviously questioned by the police, asked to take a Polygraph, asked for blood tests.
He goes back to his home at Rockingham when there is all the friends and family around that he is going to need to support his Defense effort and he is making responses to the television news broadcasts that don't qualify as a startling event, and his utterances in response thereto not only lack trustworthiness, but they are not--can I borrow the evidence code for a second?
I just need the evidence code for a second, your Honor. I wanted to see the specific language I wanted to read.
Okay. It has to purport to "Narrate, describe or explain an act, condition or event." His response to the newscasts neither explains, narrates or describes the newscasts, nor can the newscast be termed to be an act, condition or event. These are all ongoing television broadcasts that were on for the entire day. It also has to be made spontaneously while the declarant is under the stress of excitement caused by the perception. The perception was way early on at the police station, not newly discovered at that point. There is nothing, nothing in the manner in which any of these events transpired with the Defendant there in the family room that qualifies under 1240 of the evidence code.
I take it what you are trying to say is based upon the offer of proof that there is an inadequate foundation?
Not just an inadequate foundation, I'm saying there can never be adequate foundation for the circumstance under which the utterances were made.
Your Honor, I think that counsel--I would like, as we do this 402, to renew this, and I would like to spell out what I indicated to the Court. I would like an opportunity to spell out these things. These only--refers only to spontaneous. I think there is a state of mind exception to this. And they make this big thing about the state of mind. Look at all the time they spent with Phillips talking about he didn't react like a man who just heard his wife has been killed and even asked, "What do you mean she has been killed?" And we went through all that. And now--
But you have also been allowed to get in through this witness that he was upset, he was distraught and she had never heard him react in this way ever before in her life, and that was contemporaneous to the same conversation with the detectives in the kitchen where the notification was made.
--you are indicating you want an opportunity to have a 402 hearing to perhaps present some additional--
My inclination is to tell you that you have an inadequate foundation at this point based upon the offer of proof.
Very little, if any, but this would be where we should probably conclude, so I want to do the 402 and talk to her about the statement. Is that all right?
Self-serving statement with no indicia of trustworthiness made for the benefit of all of them around in response to the accusation on the television at the time.
He did it, he did it, that son of a bitch did it.
To the TV? He is saying, 'How can they accuse me of that?' Blah, blah, blah.
Blah, blah, blah.