           IN THE SUPREME COURT OF THE STATE OF DELAWARE

EVERETT URQUHART,                      §
                                       §     No. 287, 2015
      Defendant Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID No. 1407012946
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: February 24, 2016
                          Decided:   February 26, 2016

Before HOLLAND, VALIHURA, and SEITZ, Justices.

                                     ORDER

      This 26th day of February, 2016, it appears to the Court that:

      (1)    On July 15, 2014, Corporal Paul Demarco responded to an armed

robbery at a corner store in Wilmington. He briefly checked on the store occupants

and then walked up the street where he saw a woman. The woman told Corporal

Demarco that she saw someone flee the area and described the getaway car and

license plate. Subsequent investigation linked Everett Urquhart to the robbery. At

trial, Urquhart objected to Corporal Demarco’s account of the unknown woman’s

statement about the vehicle as hearsay and as a violation of his constitutional right

to confront witnesses.    The Superior Court overruled the objection.        A jury

convicted Urquhart of robbery and related crimes. Urquhart has now appealed,
challenging the Superior Court’s evidentiary ruling. After a careful review of the

record, we agree with the Superior Court that the unknown woman’s statement

qualified as an exception to the rule against hearsay and was not testimonial.

Therefore we affirm the judgment of the Superior Court.

      (2)   On July 15, 2014, a masked man wearing a black North Face coat and

ski mask walked into the Lesly Grocery, a corner store in Wilmington.          He

approached the cashier and pulled out a gun. The robber demanded that the cashier

hand over the money in the register and fired the gun near him. A security camera

documented the robbery. Another camera captured a dark-colored Chrysler 300

driving by the store seventy six seconds before the robbery.

      (3)   Wilmington Police Corporal Paul Demarco was on duty that day in

the vicinity of the crime scene. A construction crew flagger approached Corporal

Demarco and told him that someone was shooting inside the Lesly Grocery. After

briefly checking on the welfare of the store occupants, Corporal Demarco walked

up the street and encountered an unidentified woman. She appeared calm, but was

whispering quietly as if she did not want to be seen speaking to police. The

woman told Corporal Demarco that she saw someone flee the area and get into a

green, four-door sedan. She also gave him its license plate number. Less than two

minutes passed between the time Corporal Demarco radioed that he was

responding to the call and the time he radioed the license plate number.


                                         2
      (4)    DMV records showed that Caree Matsen owned a green Chrysler 300

bearing the license plate number that the woman provided. Matsen testified that

she had loaned her car to her sister’s boyfriend, Everett Urquhart. Police searched

Matsen’s residence and found Urquhart’s belongings in Matsen’s sister’s bedroom.

Police also found several pictures of Urquhart wearing a black North Face jacket

with a hood. Urquhart was arrested and charged with robbery.

      (5)    At trial, the State sought to introduce through Corporal Demarco the

unidentified woman’s statement describing the vehicle and license plate. The State

argued that the statement was admissible as an excited utterance and as a present

sense impression, exceptions to the rule against hearsay.          Urquhart objected,

arguing that the exceptions did not apply, and also that the statement was

testimonial and thus its admission would violate the Confrontation Clause of the

United States Constitution.      The Superior Court overruled the objection and

permitted Corporal Demarco’s testimony. The court reasoned that the woman’s

statement was not testimonial because the situation qualified as an emergency.

The court also found that under the circumstances, it could infer that the woman

spoke to the officer immediately after the startling event while she was still under

the stress of it, invoking the exceptions to the rule against hearsay.




                                           3
       (6)    After a three-day trial, a jury convicted Urquhart of robbery first

degree,1 possession of a firearm during the commission of a felony, 2 possession of

a firearm by a person prohibited,3 reckless endangering, 4 and wearing a disguise

during the commission of a felony. 5 The Superior Court sentenced Urquhart to 15

years at Level V incarceration followed by decreasing levels of supervision. This

appeal followed.

       (7)    On appeal, Urquhart argues that the Superior Court erred by admitting

the unidentified woman’s hearsay statements about the car. He also contends that

because the statement was testimonial, its admission violated his constitutional

right to confront witnesses at trial. We review the Superior Court’s decision to

admit or exclude evidence based on hearsay for abuse of discretion.6 “An abuse of

discretion occurs when a court has exceeded the bounds of reason in view of the

circumstances, or so ignored recognized rules of law or practice to produce

injustice.” 7 To the extent an evidentiary ruling implicates constitutional questions,

our review is de novo.8



1
  11 Del. C. § 832.
2
  11 Del. C. § 1447.
3
  11 Del. C. § 1448.
4
  11 Del. C. § 604.
5
  11 Del. C. § 1239.
6
  Nalley v. State, 935 A.2d 256 (Del. 2007) (Table).
7
  Wright v. State, 25 A.3d 747, 752 (Del. 2011) (quoting Floudiotis v. State, 726 A.2d 1196,
1202 (Del. 1999)).
8
  Capano v. State, 781 A.2d 556, 607 (Del. 2001).
                                             4
       (8)    Hearsay statements are generally inadmissible. 9 But “present sense

impression and excited utterance are both well recognized exceptions to the

general evidentiary rule against hearsay.” 10             The present sense impression

exception in Rule 803(1) permits the admission of a “statement describing or

explaining an event or condition made while the declarant was perceiving the event

or condition, or immediately thereafter.” Under Rule 803(1), the declarant must

personally perceive the event and the statement must explain or describe the

event.11 The statement does not have to be exactly contemporaneous with the

event, but it must respond to it and occur a short time thereafter. 12

       (9)    For example, in Wheeler v. State, 13 a woman heard gun shots in her

house and ran toward the sound.             In the kitchen, she witnessed her sister’s

boyfriend shoot her mother’s boyfriend and run away. Shortly after, she told her

sister what she saw. This Court determined that the woman’s statement to her

sister was a present sense impression because it was a “personal perception by an

eyewitness describing the event and made immediately after the shooting.” 14

       (10) Wheeler is analogous to this case. The unidentified woman witnessed

the robbery and the ensuing getaway. She saw a man get into a green car, noted


9
  D.R.E. 802.
10
   Wheeler v. State, 36 A.3d 310, 314 (Del. 2012); see also D.R.E. 803(1); D.R.E. 803(2).
11
   Abner v. State, 757 A.2d 1277 (Del. 2000) (Table).
12
   Id.
13
   36 A.3d 310.
14
   Id. at 314.
                                               5
the license plate number, and described that information to Corporal Demarco. It

took less than two minutes from the time Corporal Demarco arrived at the scene,

checked on the store occupants, spoke to the woman, and relayed the information

over the radio. Given these facts, the Superior Court did not abuse its discretion

or err as a matter of law when it ruled that the statement was a present sense

impression and not hearsay.

         (11) The statement was also admissible under the excited utterance

exception of Rule 803(2). To qualify as an excited utterance, the proponent must

show: “(1) the excitement of the declarant [was] precipitated by an event; (2) the

statement being offered as evidence [was] made during the time period while the

excitement of the event was continuing; and (3) the statement [was] related to the

startling event.”15

         (12) This case is similar to Nalley v. State.16   In Nalley, a bystander

observed the defendant drive into a residential neighborhood at a high rate of

speed. The defendant jumped from the vehicle while it was still moving and ran

through the neighborhood. A short time later, police arrived on the scene. The

bystander volunteered information regarding the defendant’s clothing and his

direction of travel. We held that the statement was an excited utterance because a



15
     Gannon v. State, 704 A.2d 272, 274 (Del. 1998).
16
     935 A.2d 256 (Del. 2007) (Table).
                                                 6
person “hurriedly fleeing from a car in a neighborhood followed by police officers

at night could reasonably prompt an excited utterance from local residents.” 17

          (13) Like Nalley, the statement in this case qualified as an excited

utterance. The unidentified woman who gave the statement saw the car speeding

away from the robbery, and gave a description of the car and the license plate

number. Her statement was precipitated by the robbery, and the statement was

made almost contemporaneous with the robbery and related to the robbery.

Although the record does not directly confirm the excited state of the declarant, we

can reasonably infer that she was excited, given the circumstances. The woman

had peered into the grocery store during the commotion, so she likely heard the

gunshot and knew a robbery just occurred. Even though the witness appeared calm

and spoke quietly, she was likely attempting to avoid being seen assisting the

police. Under these circumstances, it was not error for the Superior Court to find

that she was “excited” at the time of the event.18 Therefore, all of the elements of

the test for an excited utterance were satisfied, and the Superior Court did not

abuse its discretion by admitting the statement into evidence.

          (14) Finally, Urquhart argues that the admission of the unidentified

woman’s statement violated his Sixth Amendment right to confront witnesses

against him because the statement was testimonial. He argues if he had been able

17
     Id. at *4.
18
     See Wright, 25 A.3d at 752.
                                          7
to cross examine the woman, he could have exposed a reasonable doubt as to the

accuracy of her statement.          In Crawford v. Washington 19 the United States

Supreme Court held that the Confrontation Clause bars the “admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.”20 A statement is testimonial “when the circumstances objectively

indicate that there is no such ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” 21

       (15) At the time Corporal Demarco asked the woman if she had seen

anyone run by, he was attempting to control a situation where an armed robbery

had just occurred and a man who fired a gun at a store cashier was fleeing the

scene. The witness answered the officer voluntarily and did so to assist him in an

ongoing emergency “rather than simply to learn what happened in the past.”22

Therefore, the Superior Court correctly held that the statement was not testimonial

and therefore did not implicate the Confrontation Clause.




19
   541 U.S. 36 (2004).
20
   Id. at 53-54; see also Jones v. State, 940 A.2d 1, 11 (Del. 2007).
21
   Davis v. Washington, 547 U.S. 813, 822 (2006); see also Jones, 940 A.2d at 11.
22
   Davis, 547 U.S. at 822; see also Nalley, 935 A.2d 256 (bystander’s unsolicited statements to
police were not testimonial because the primary purpose was to assist the police with an ongoing
emergency).
                                               8
     NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                     BY THE COURT:

                                     /s/ Collins J. Seitz, Jr.
                                            Justice




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