EvidenceProf Blog

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

Wednesday, January 16, 2008

Seattle's Best?: Charges Dropped Against Richard McIver After Judge Finds Wife's Statements Aren't Excited Utterances

The domestic violence charges against Seattle City Councilman Richard McIver have been dropped on the eve of trial after the judge's evidentiary ruling excluding his wife's statements as excited utterances.  McIver's wife, Marlaina Kiner-McIver, called 911 sometime after midnight on October 10 but then hung up immediately.  A 911 dispatcher thereafter called her back and left a message.  Malaina then called 911 again and told a dispatcher that while she had a fight with her husband, it was purely verbal and not physical.  Domestic violence calls, however, cannot be undone, and police officers thus visited the McIver home, whereupon Marlaina claimed that McIver had been drunk, launched into a profanity laced tirade against her, and grabbed her arms and neck. 

She later retracted this claim to police, but prosecutors were set to admit both sets of statements pursuant to Washington Rule of Evidence 803(a)(2), Washington's version of the excited utterance exception to the rules against hearsay.  While out of court statements are generally inadmissible to prove the truth of the matter asserted in the statement, the excited utterance exception 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.  The oft criticized theory behind this exception is that people instinctively tell the truth; thus, when they are startled by an event or condition (such as an altercation) and have insufficient time to reflect upon it, their statements are likely to be truthful.

The judge in McIver's case, however, found that this exception was inapplicable to Marlaina's statements "based, in large part, on [her] demeanor when she spoke with police and [the] 911 dispatcher."  According to the judge, because Marlaina appeared to be calm and had time to reflect before making her comments, her statements to the 911 dispatcher and the police were inadmissible hearsay and not admissible excited utterances.  This decision came over the prosecution's objection that "[y]ou don't have to be crying or hysterical to be under the stress of the incident."  After the judge rejected this argument and deemed the statements inadmissible, the prosecutors realized that they had insufficient evidence to convict McIver and thus dismissed all charges.

While the proscutor is correct that the declarant does not necessarily have to be crying or hysterical for the excited utterance exception to apply, when declarants are described as "calm," their statements are almost never considered excited utterances. See, e.g., State v. Doe, 719 P.2d 554, 556 (Wash. 1986).  Furthermore, while domestic violence is undoubtedly startling, the few cases where courts have found that statements by "calm" declarants constitute excited utterances involve startling events of the most shocking variety. See, e.g, State v. Jennings, 677 N.W.2d 733 (Wis.App. 2004) (finding that statements by four-year old that she was sexually assaulted were excited utterances despite the fact that she appeared "calm" when making the statements).  It should be noted that in the United States' Supreme Court's recent decision in Davis v. Washington, 126 S. Ct. 2266 (2006), the Supreme Court found that a wife's statements to a 911 dispatcher concerning a domestic disturbance, made after she initially called 911 and hung up, were deemed to be admissible excited utterance, but there was evidence in that case that the declarant was startled rather than calm.



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