In trial for engaging in a sexual act with a consent-incapable person, admitting the victim's statement “help me, help me, he raped me” as an excited utterance under the FRE 803(2) hearsay exception where the statement was made less than two hours after the alleged rape and immediately upon the victim escaping the defendant; admission of the excited utterance did not violate Crawford because the victim also testified at trial, in United States v. Smith, 606 F.3d 1270 (10th Cir. June 3, 2010) (No. 09-2040)
How long can one stay excited about a shocking event for purposes of FRE 803(2) which excepts from the hearsay rule statements made under the stress of excitement if they express the declarant's reaction to and relate to the matter causing excitement? The courts have no hard and fast rule on this. A recent Tenth Circuit case explores this and other issues concerning application of FRE 803(2). The case presents a fairly instructive review of what is needed for the application of the FRE 803(2) hearsay exception.
In the case, defendant Smith was charged with sexually assaulting victim Doe who could not consent to the defendant's contact because she was asleep after a party she attended with the defendant where they “consumed beer, and some used drugs”. Although the party ended at midnight, the victim and defendant remained and the victim fell asleep around 2:00 a.m. As described by the circuit, “Doe awoke to find Smith having sex with her. She pushed Smith off, confronted him, and fled the hogan. She sought assistance at a neighbor's trailer, claiming she had been raped. She then called the police. Jane Doe was taken to an emergency room. DNA samples taken by an examining doctor were later matched to Smith.” Smith, 606 F.3d at 1274.
At the defendant's trial, evidence was received that “[a]fter realizing she had been sexually assaulted, Jane Doe confronted Smith. An altercation ensued, Jane Doe struck Smith, and then fled the hogan, seeking assistance at a neighbor's trailer. Jane Doe's pounding on the trailer's front door awakened the neighbor at approximately 4:30 a.m. The neighbor answered the door and found Jane Doe crying and screaming- 'Help me, help me. He raped me.'” Smith, 606 F.3d at 1275 (citations omitted).
The defendant sought to exclude the evidence of the victim's statement to the neighbor about the assault as hearsay. The trial judge admitted the statement as an excited utterance under FRE 803(2). After his conviction, the defendant appealed the determination that the victim's statement was admissible under FRE 803(2). The circuit affirmed the admission of the victim's statement. It noted that the statement seemed to fall squarely within the excited utterance hearsay exception. The circuit noted that it applied a three part foundation for such evidence:
“The so-called 'excited-utterance [hearsay] exception has three requirements: (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.' '[T]here is no precise amount of time between the event and the statement beyond which the statement cannot qualify as an excited utterance.' Admissibility hinges on a statement's contemporaneousness with the excitement a startling event causes, not the event itself.”
Smith, 606 F.3d at 1279 (quoting United States v. Pursley, 577 F.3d 1204, 1220-22 (10th Cir. 2009); United States v. Ledford, 443 F.3d 702, 711 (10th Cir.2005))
The circuit then applied the three part test for the foundation, finding that it met each required element:
“First, a startling event occurred-the sexual assault. That event was sufficiently supported by Jane Doe's testimony at trial that she was raped, and Smith's confession that he raped Jane Doe.Smith, 606 F.3d at 1280.
“Second, we have little difficulty concluding Jane Doe was under the stress of the assault's excitement when she made the statement. In considering this element, [a]mong the more relevant factors are: 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. Here, Jane Doe fell asleep in the hogan around 2:00 a.m., Smith sexually assaulted her for 30 minutes, and she made the challenged statement to the neighbor at approximately 4:30 a.m. The record describes a confusing series of events after Jane Doe realized and understood the nature of the assault. Jane Doe confronted Smith, struck him, and eventually received assistance from the neighbor. At the first possible moment to disclose the assault to another person, she made the challenged statement. The neighbor's testimony confirms Jane Doe's demeanor and tone, which were consistent with ongoing stress arising from the assault.”
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Finally, Smith does not contest the obvious nexus between the content of the statement-Jane Doe's utterance-'Help me, help me. He raped me.' -and the startling event, her sexual assault.
In addition to finding that a sufficient foundation for admitting the victim's cry the circuit noted the problem of time as a measure of the stress of excitement for the excited utterance. The circuit found little difficulty in concluding that the time gap between the alleged rape and the victim's report did not diminish her excitement. As explained by the circuit:
“Nor does the passage of time suggest the stress had dissipated. Other courts have found the excited-utterance exception applies where more time elapsed between the startling event and the excited statement. For example, in United States v. Cruz, 156 F.3d 22 (1st Cir. 1998), the First Circuit held a statement could be admitted as an excited utterance when there was a four-hour delay between a violent domestic altercation and statements made by the victim at a battered women's shelter. See id. at 30 (cited with approval in Pursley, 577 F.3d at 1221). Similarly, in United States v. Tocco, 135 F.3d 116 (2d Cir. 1998), the Second Circuit ruled a statement could be admitted under the excited-utterance exception where three hours passed between the discovery that people were in a burning building and the declarant's statement that he was involved in the arson. See id. at 128 (also cited with approval in Pursley, 577 F.3d at 1221). And, we have noted that a statement made by a child the day after being molested could have been admitted as an excited utterance where the child was described as frightened and on the verge of tears when the declaration was made. See United States v. Farley, 992 F.2d 1122, 1123, 1125-26 (10th Cir. 1993). Here, less than two hours after being raped and only upon escaping from Smith, Jane Doe-still under obvious stress from the attack-made the statement to the neighbor.”Smith, 606 F.3d at 1280.
The circuit made quick work of the defendant's Crawford objection, charging that admitting the victim's excited utterance violated his rights under the Confrontation Clause. The circuit noted that the victim had testified and so the defendant had an opportunity to cross-examine her about her statement. Under these circumstances Crawford was not applicable. The circuit concluded that admission of the victim's plea for help once she escaped the defendant appeared to handily qualify for treatment as an excited utterance. Other factors, besides time can play a crucial role in deciding whether to admit the evidence. For another example, in which the utterance was excluded, consider United States v. Marrowbone, 211 F.3d 452, 454–55 (8th Cir. 2000) (victim's statements that the defendant sexually assaulted him were excluded because the statements were made after three hours had passed from the time of the assault and the declarant has an “acute ability to deliberate and fabricate”).
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