Federal Evidence Review

Noting as "problematic" whether to admit a 911 dispatcher's testimony about receiving a call in which the declarant identified the defendant as the assailant of victims; trial court likely erred in admitting the 911 call as an excited utterance under FRE 803(2) because the case record provided "no way to identify the basis of the [declarant's] statement with any certainty"; however any error in admitting the statement was harmless in light of overwhelming evidence, in United States v. Erickson, __ F.3d __ (8th Cir. July 12, 2010) (No. 09-1818)

FRE 803(2) provides that an out-of-court statement is admissible as an excited utterance when it “relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” FRE 803(2). Implicit in the rule is the idea that the declarant's statement reflects the declarant's perception of the exciting event. This is not always clear however. An recent Eighth Circuit case, United States v. Erickson, explores the significance of identifying the basis for the excited utterance under FRE 803(2).

In the case, defendant Erickson was charged with assault with a deadly weapon arising from a New Years 2008 party. Most attendees were intoxicated, and "Erickson became increasingly agitated as the evening wore on.... At about 3:00 a.m. on January 2, Erickson became involved in an argument with Anthony Kitteaux. Erickson walked out of the residence and onto a front porch area. Anthony Kitteaux followed after him to see what Erickson was doing.... As Anthony Kitteaux ... look[ed] outside, Erickson slashed him across the face with a knife, leaving a large flap of skin hanging from Kitteaux's cheek. Kitteaux yelled, 'ow, that mother f---er cut me' as he retreated back inside. Eli Antoine, who had been sitting inside, went to the door, whereupon Erickson swung the knife again, slashing Antoine across the palm of his left hand.... Erickson fled the residence on foot and several of the individuals who had been present at the party chased after him. Samantha Kitteaux and another individual, Frank Swalley, remained behind and made two 911 emergency calls as they attempted to help with the victims' wounds. During the second 911 call, Frank Swalley got on the phone and identified Erickson as the assailant." Erickson, __ F.3d at __.

By the time of the defendant's trial, many of the witnesses professed not to recall events of the party or the assaults. For example, "Frank Swalley testified that Erickson became agitated during the evening and was hollering .... But Frank Swalley had no recollection of the stabbing or making a 911 call. Rather, he claimed that he had passed out from drinking and was awakened only after the assaults had already taken place. He testified that after he woke up he saw blood gushing from Eli Antoine's wound and used his belt as a makeshift tourniquet to stop the bleeding." For impeachment purposes, and "[o]ver defense counsel's hearsay objection, the government introduced testimony from a 911 dispatcher that an individual named 'Frankie'-recognized now as Frank Swalley-had identified Erickson as the attacker." The trial court admitted the testimony "under the excited utterance exception to the hearsay rule." After his conviction, the defendant appealed. Erickson, __ F.3d at __.

The circuit found admission of the dispatcher's testimony was problematic as an excited utterance under FRE 803(2). The circuit panned the government's argument that the dispatcher's testimony was admissible under the rule because:

"Frank Swalley's identification of the assailant while he was still experiencing trauma from the aftermath of a knife assault falls within [FRE 803(2)]. Certainly Swalley could have been startled by awakening to the chaos that erupted after the assault, with a group of people chasing Erickson and others attempting to respond to a medical emergency. Swalley's testimony also indicated that the event was traumatic, as he saw blood gushing from Eli Antoine's hand and attempted to stop the bleeding. And Swalley's statement to the 911 dispatcher identifying Erickson was related to the startling event of the assault."

The circuit rejected this argument. "The problem," indicated the circuit was "that the trial testimony did not make it clear how Swalley obtained the information that he related over the phone. The trial testimony indicated that Frank Swalley had passed out from drinking and was awakened only after the attack had already occurred.... Frank Swalley testified that he had no recollection of the 911 call. The lack of detail in the trial record thus makes his statement difficult to evaluate because it is not clear how he came to the conclusion that Erickson had committed the crime." Erickson, __ F.3d at __.

In rejecting admission as an excited utterance, the circuit noted:

"The question is not who made the statement, but instead how the information was obtained.... In this case there are a number of conceivable explanations for Frank Swalley's belief that Erickson was the assailant-for example, someone who witnessed the attack could have told him; he might have observed people leaving the residence to chase after Erickson; or he could have based his conclusion on his earlier observation of Erickson's erratic, aggressive behavior. Because there is no way to identify the basis of the statement with any certainty, however, it is problematic whether it was properly admitted as an excited utterance."

Ultimately the circuit avoided further analysis by recognizing that even had admission be an error, it was harmless. Two eyewitnesses described the events, and although "neither testified to seeing the knife ... the evidence left no doubt that the victims suffered knife wounds and that Erickson had caused the injuries." The circuit noted that the compelling evidence included the police noting that the defendant had blood on his hands at the time of his arrest and that the defendant made phone calls from jail in which he apologized for causing the injuries. This evidence brought the circuit to conclude that "any error in admitting Frank Swalley's out-of-court statement was harmless." Erickson, __ F.3d at __.

Where there is a sufficient basis to admit the statement as an excited utterance, this does not necessarily mean that weaknesses in the evidence are not disclosed to the fact-finder. Other deficiencies in the evidence may go to its weight and not its admissibility. See, e.g., United States v. Davis, 577 F.3d 660, 669–70 (6th Cir. 2009) (Admitting 911 call made by witness regarding seeing the defendant with gun and noting that possible exaggerations in the statement go to weight, not admissiblity of the evidence.)