Wilson v. Laney

Under OEC 803, a startling event, rather than the will of the declarant, provides the requisite spontaneity to support the “excited utterance” exception to hearsay because the “pain, excitement or horror of the event had stilled the powers of reflection and had enabled the event itself to speak through the tongue of the declarant.” State v. Hutchison, 222 Or 533, 537, 353 P2d 1047 (1960).

Petitioner sought post-conviction relief after the unsuccessful appeal of his convictions for burglary, robbery, and assault. The post-conviction court denied his claim.

Petitioner appealed the denial of post-conviction relief, contending that his trial counsel was ineffective and unconstitutionally inadequate because Petitioner's trial counsel failed to object to the admission of out-of-court statements made by two witnesses to police officers.

Under OEC 803(26a), admission of a hearsay statement that “purports to narrate, describe, report or explain an incident of domestic violence, as defined in ORS 135.230” is permitted when the statement is “made by a victim of the domestic violence within 24 hours after the incident occurred,” is made to a peace officer, and has sufficient indicia of reliability. The court found that because the witnesses were not in “fear of imminent serious physical injury,” their statements did not constitute “excited utterance.” Therefore, “all reasonable trial counsel would have made a hearsay objection to the officer’s testimony.” Further, the court found that trial counsel’s failure to object resulted in prejudice. Accordingly, the court found that Petitioner established ineffective assistance of counsel. Thus, the court agreed that the post-conviction court erred.

Reversed and remanded.