Federal Evidence Review

In felon in possession of a firearm trial, witness’s 911 call after she saw the defendant in a car with a gun was admissible as an excited utterance despite her testimony at trial that she had exaggerated the report in summoning the police; the exaggerations went “to the weight, not the admissibility of the 911 call”; Sixth Circuit concluded the 911 call “better fits the present sense impression exception,” in United States v. Davis, 577 F.3d 660 (6th Cir. Aug. 20, 2009) (No. 08-1349)

FRE 803(2) provides as an exception to the hearsay rule admitting any “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The reason an out of court statement is admissible under this rule is “simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of considerable fabrication.” ACN (1972).

What happens if, despite a showing that under stress of excitement of a startling event the declarant made a statement before there is time to misrepresent, the declarant later admits that her excited utterance was “exaggerated”? Is the statement still admissible? The Sixth Circuit recently explained that the declarant’s later admission of having misrepresented in her excited utterance does not affect the statement’s admissibility, but goes only to the weight of statement.

In the case, defendant Davis was arrested and charged as a felon in possession of a firearm the day after witness McIntosh, while walking with two small children, “saw a man she recognized as Defendant [Davis] riding in a vehicle, and was able to see that he was holding a gun.” The parties agreed that the trial court admitted the contents of McIntosh’s 911 call as both an excited utterance and as a present sense impression. Davis, 577 F.3d at 668 n.7. After his conviction, the defendant appealed in part based on the admission of the 911 call.

The Sixth Circuit affirmed the admission. Under FRE 803(2), the circuit noted a three-part test on whether a statement is an excited utterance:

“This circuit has held that there are three elements for establishing admissibility as an excited utterance. ‘First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.’”

Davis, 577 F.3d at 669 (citing Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983) (“The excited utterance exception is based on the belief that the statement is reliable because it is made while the declarant is under the stress of excitement. It is unlikely that the statement is contrived or the product of reflection.”)).

The difficult question for the trial court involved the second element that the statement was made “before there is time to contrive or misrepresent.” The circuit agreed, however, that this second element had been satisfied:

“Despite the small amount of time between witnessing the event and the 911 call, there were certain acknowledged ‘exaggerations’ in McIntosh's 911 call. McIntosh told the 911 dispatcher that Defendant had two guns, instead of the one she testified to [at trial], and she told the dispatcher it had been five minutes since she saw him, not the mere thirty seconds to one minute she later was to relate under oath. These exaggerations, however, do not preclude the applicability of the excited utterance exception.”

Davis, 577 F.3d at 669.

The reason that these subsequent statements that departed from the account provided by the excited utterance did not undermine the application of FRE 803(2) was because the post-statement reasons for doubting the reliability did not undermine the admissibility of a statement that facially met the test required by the hearsay exception. As the circuit had explained in an earlier case, “a statement that satisfies all of the elements of our test for excited utterances meets the threshold for admissibility under Rule 803(2), even though its reliability might be subject to challenge on such grounds as inconsistency with subsequent statements or the speaker's motive to fabricate.” Davis, 577 F.3d at 669 (quoting United States v. Hadley, 431 F.3d 484, 498 (6th Cir. 2005) (no abuse of discretion to admit as excited utterance defendant's wife's statements to police, “he's got a gun” and “he's going to kill me”)).

Subsequent evidence undermining the veracity of the excited utterance did not undermine the statement’s admissibility. As explained by the circuit:

“the statement meets the second Haggins prong because McIntosh made the 911 call only moments after witnessing the event. The fact that she later stated she made ‘exaggerations’ goes to the weight, not the admissibility of the 911 call. Thus, we conclude that the 911 call was properly admitted as an excited utterance as well as a present sense impression, and we uphold the district court's ruling.”

Davis, 577 F.3d at 669-70 (citing quoting United States v. Hadley, 431 F.3d 484, 498 (6th Cir. 2005) (“Any challenges to the reliability of these statements [excited utterances] would go to their weight rather than their admissibility ...”)).

The circuit also explained that no error had occurred in admitting the McIntosh 911 call on an alternative ground. First, the call was also admissible as a present sense impression under FRE 803(1) because McIntosh made the call immediately after witnessing the described event she described in the 911 call. As the circuit explained:

“Although McIntosh told the dispatcher it had been five minutes since she saw Defendant, she later testified that this was incorrect and it had only been between thirty seconds and one minute. Under either scenario, within the context of witnessing a known acquaintance with a firearm, the statements were made ‘sufficiently contemporaneous to satisfy the requirements of Rule 803(1).’”

Davis, 577 F.3d at 668 n.6.

Finally, even if the statement should not have been admitted as an excited utterance or as a present sense impression, the admission of the statement was harmless in light of other unchallenged evidence of guilt.

The Davis case illuminates an interesting way to consider statements that are different at the time of the initial report and trial testimony. The circuit allows the jury to consider any discrepancies (or exaggerations) for the weight of the evidence.