Telephone Threat Constituted Startling Event

Testimony of a friend warning the defendant’s uncle that he had received a threat that the defendant planned to kill the uncle was admissible under FRE 803(2) as an excited utterance as the telephone call was made after the startling threat; in United States v. Jongewaard, 567 F.3d 336 (8th Cir. June 3, 2009) (No. 08-2111)

When a recipient receives information about a threat and promptly conveys that information to the intended victim, can the testimony about warning the victim be admitted as an excited utterance? In other words, can the threat serve as a startling event which puts the declarant under stress of excitement, permitting admission of the statement as an excited utterance? The Eighth Circuit recently considered this issue. On the facts of the case, the circuit affirmed the admission of the testimony as an excited utterance.

In the case, defendant Jongewaard called his uncle’s best friend and informed the friend that he was going to kill the uncle. The threat was repeated during a series of telephone calls. The friend called the uncle and warned him of the threat. The uncle and friend went to state court to obtain a restraining order. The defendant was charged with transmitting a threatening communication in interstate commerce to injure another person. At trial, the friend testified about receiving the threatening telephone calls from the defendant and then calling the uncle to warn him. The trial court overruled the defendant’s hearsay objection, and admitted the testimony as an excited utterance, under FRE 803(2). The jury convicted the defendant and the court sentenced him to 60 months’ imprisonment.

The circuit agreed that the testimony was properly admitted as an excited utterance. As the circuit explained:

“[Defendant] Jongewaard argues that the Government failed to lay an adequate foundation to show that the call between [the friend] Schmidt and [the uncle] Richard occurred while Schmidt was under the stress of excitement caused by his conversation with [defendant] Larry. This argument fails to recognize that Schmidt’s testimony preceded Richard’s. There was no need for the Government to make a full proffer in response to [defendant] Jongewaard’s objection because Schmidt had already testified that he called Richard after his startling conversation with Larry to recount ‘exactly what Larry had said.’ Schmidt’s testimony provided an adequate foundation for Richard to testify about his recollection of Schmidt’s excited utterances. Thus, we are satisfied that the district court did not abuse its discretion by overruling Jongewaard’s objection to Richard Jongewaard’s testimony.”
Jongewaard, 567 F.3d at 343.

Finally, the circuit added that even assuming arguendo that the testimony was erroneously admitted, any error was harmless under FRE 103(a) based on overwhelming evidence of guilty.

FRE 803(2) requires that the statement be “relat[ed] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The Jongewaard case notes that a threatening communication can constitute a “startling event” to produce the necessary “stress of excitement” for the statement to be admitted under the hearsay exception.

Federal Rules of Evidence