Excited Utterances Admitted Following Brutal Beating

Victim statement made about an hour after a brutal assault during his transport to the hospital was admissible as excited utterances; there was no Confrontation Clause violation since there “a full and fair opportunity to cross-examine” the victim about the statement, even though the victim “did not testify as to the content of his post-assault statements”, in United States v. Pursley, 577 F.3d 1204 (10th Cir. Aug. 21, 2009)

A recent Tenth Circuit case suggests factors to consider in admitting an excited utterance under FRE 803(2). In doing so, the circuit also considered admissibility of a statement under the Confrontation Clause where the victim testified at trial, but not directly about the statements.

In the case, witness Cluff was brutally assaulted in a holding cell after he testified against defendant Pursley in a tax fraud prosecution. The victim did not initially summon guards after the attack and many minutes passed before he felt secure enough to get aid for his wounds while in the presence of his assailants. During the victim's transport to the hospital, about an hour after the assault, he told a deputy U.S. marshal that he heard assailant Shields yell to defendant Pursley, “Hey, Cluff is down here with us.” Defendant Pursley responded, “Well, you know what to do.”

At the trial of defendant Pursley, over defense objection, the deputy marshal testified about these two statements the victim told him while going to the hospital. The trial court ruled the statements were admissible as excited utterances and not in violation of the Confrontation Clause because it “fit into one of the hearsay exceptions present at the time the Sixth Amendment was adopted.” Witness Cluff also testified at the trial, but not directly about the two statements. The defendants were convicted at trial. On appeal, the defendants claimed the statements were inadmissible hearsay and violated the Confrontation Clause. On the hearsay challenge, the defendants raised questions about “the lapse of time between the assault and Mr. Cluff’s contact with [deputy U.S. marshal] Mr. Moltzan; the occurrence of intervening events; and Mr. Cluff’s motive to fabricate the statement.” Pursley, 577 F.3d at 1220.

The Tenth Circuit affirmed the admission of the statements as excited utterances, under FRE 803(2). The circuit concluded the three elements under the excited-utterance exception were met, including “(1) a startling event; (2) the statement was made while the declarant was under the stress of the event’s excitement; and (3) a nexus between the content of the statement and the event.” Pursley, 577 F.3d at 1220 (citing United States v. Ledford, 443 F.3d 702, 710 (10th Cir. 2005)). The first and third elements were readily met. The brutal assault was a startling event and the statements related to the assault. On the second element, the circuit noted that “a range of factors” could be applied “in determining whether a declarant made a statement while under the stress of a particular event,” including “the amount of time between the event and the statement; the nature of the event; the subject matter of the statement; the age and condition of the declarant; the presence or absence of self-interest; and whether the statement was volunteered or in response to questioning.” Pursley, 577 F.3d at 1220.

The circuit determined that the statements were made about an hour after the assault and “[f]or more than half of this time, Mr. Cluff was in direct stress of the threat of violence.” Pursley, 577 F.3d at 1221. He was threatened not to seek help and feared he may be beaten again. He was in pain from the beating. The deputy marshal observed that the witness was “excited” and “appeared nervous, kind of fidgety,” and unable to “stop moving.” The fact that he was alert was not tantamount to lack of excitement, or even lack of shock.” The circuit noted, under these circumstances, “when Mr. Cluff finally made his statements to Mr. Moltzan, approximately twenty to thirty minutes after his removal from the presence of his assailants, he was well within the temporal range of trauma contemplated by Rule 803(2).” Pursley, 577 F.3d at 1221.

Other factors did not undermine the stress of the excitement:

“Moreover, no intervening event occurred between the time of Mr. Cluff’s removal from his cell and his interaction with Mr. Moltzan that could have diluted the effect of the event’s trauma. His request for medical treatment to address his pain certainly did not constitute such a shock-defeating event. Importantly, Mr. Cluff’s statements on the way to the hospital were spontaneous—not conscious, reflective responses to suggestive questioning.”
Pursley, 577 F.3d at 1222.


The defense suggested that the witness had a motive to fabricate based on his later filing of an action the U.S. Marshals for a million dollars. The circuit was not persuaded:

“We find it difficult to believe that during the very brief period after he was brutally assaulted, but before he spoke with Mr. Moltzan, that Mr. Cluff’s attention was focused on setting the legal stage for a future payday. At the very least, we find dubious the notion that any such thoughts of a payday would have been sufficiently strong and pervasive to dispel Mr. Cluff’s stress occasioned by the assault. Furthermore, we question whether the prospect of a lawsuit against the Marshals Service would have provided Mr. Cluff with a motive to lie about who perpetrated the assault. For instance, if Mr. Cluff had been motivated by a future payday against the Marshals Service, it seemingly would have been sufficient to point a finger at the direct physical actors in the altercation — Mr. Shields and Mr. Templeman — rather than including Mr. Pursley and Mr. Wardell. But Mr. Cluff did not do that.”


On this record, the statements were admissible as excited utterances through the testimony of the deputy U.S. marshal.

The Tenth Circuit also rejected the Confrontation Clause challenge. Initially, the circuit did not agree with the trial court that excited utterances fell within an exception under the Confrontation Clause. In fact, the circuit noted that “the admission of [the victim]’s statements could be found under certain circumstances to violate the Confrontation Clause, if they are testimonial.” The circuit assumed that the statements were testimonial under the Confrontation Clause. The test under the Sixth Amendment was whether the defendant had “a full and fair opportunity to cross-examine” the victim about the statements and on this record, the circuit concluded, he did. See, e.g., Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”). While the victim “did not testify as to the content of his post-assault statements to” the deputy U.S. marshal, the victim “testified that he did make such statements” and “testified as to the pre-assault conversation” between the defendants “as he remembered it.” Additionally, the victim remained subject to recall after the deputy testified. As the circuit explained its analysis:

“We recognize that Mr. Cluff did not testify as to the content of his post-assault statements to Mr. Moltzan. Nonetheless, Mr. Cluff testified that he did make such statements. He also testified as to the pre-assault conversation between Mr. Shields and Mr. Pursley as he remembered it. Mr. Pursley therefore had an opportunity to address these subjects during his cross-examination of Mr. Cluff. Moreover, Mr. Cluff remained available as a witness even after Mr. Moltzan testified. At Mr. Pursley’s request, the district court instructed the parties that Mr. Cluff “remain[ed] subject to recall for further testimony in the trial of this case.” Thus, Mr. Pursley retained the opportunity to confront Mr. Cluff about whether he actually made the challenged statements and, if so, whether Mr. Moltzan accurately described their content. Mr. Pursley’s failure to seize this opportunity at trial demolishes his Sixth Amendment claim.”
Pursley, 577 F.3d at 1225 (citations and footnote ommitted).


The Pursley case provides a useful review of the factors applied in determining whether statements may qualify as excited utterances and were admissible under the Confrontation Clause.

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