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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, January 29, 2008

Time Stands Still: Maryland Court Finds Statements Admissible As Excited Utterance Despite Lack Of Evidence On Lapse Of Time

The Maryland Court of Special Appeals affirmed the conviction of a Pikesville, Maryland attorney for assaulting his wife after determining that the trial judge properly found that the wife's statements to a friend constituted excited utterances.  On March 6, 2006, Samuel Abram Seidler allegedly dragged his wife Phoebe down the stairs, hit her, choked her, and pulled her down the hall by her hair.  According to the trial testimony of Phoebe's friend, Robert Fryer, at some point after this alleged attack, Phoebe told him about the attack.  Phoebe claimed spousal privilege and refused to testify against her husband. 

While there was no evidence about how much time elapsed after the alleged attack, the trial judge found that Phoebe's statements to Fryer were admissible as excited utterances because Fryer testified that when she made the statements, she was upset, visibly shaken, and crying, with fresh bruises, red marks, and a split, bleeding lip.  The Maryland Court of Special Appeals affirmed, finding that Phoebe's statements constituted excited utterances, and rejecting defense counsel's claims that testimony by the defendant's father and evidence allegedly withheld by the prosecution necessitated a new trial.

Without seeing the court's opinion, it is difficult to address these last concerns raised by the defendant.  That said, I see no error in the court finding Phoebe's statements constituted excited utterance despite the absence of evidence on the lapse of time between the alleged attack and her statements.  Maryland Rule of Evidence 5-803(2) indicates that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible as an exception to the rule against hearsay. 

While the absence of evidence on the lapse of time between the alleged attack and Phoebe's statements could have supported the finding that her statements to Fryer were not excited utterances, "[t]he time that elapsed between the occurrence of the event and the utterance is only one factor to be considered in determining the admissibility of the hearsay statement."  Alexander v. State, 1998 WL 857877 (Tex.App.-Dallas 1998).  Thus, for instance, in Alexander v. State, supra, the court found that a woman's statements identifying her assailant constituted excited utterances even though there was "no evidence showing how" much time passed between the attack and her statements because she was "visibly upset and crying" when she made the statements. Id. at *5. 

It seems reasonable to me that the Maryland Court of Special Appeals similarly concluded that Phoebe's statements were excited utterances based not only upon her being visibly upset/shaken and crying, but also based upon her fresh bruises and bleeding lip.  This evidence seemed not only to confirm that she was startled, but also seemed to be indirect evidence that not much time had elapsed since those injuries were caused.

-CM

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