Sunday, June 29, 2008
I'm So Excited: Court Of Criminal Appeals Of Texas Finally Agrees With My "Subsequent Startling Occurrence" Formulation Of The Excited Utterance Exception
A few years ago, I wrote the article, A Shock to the System: Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005). The basis for the article was a memorandum I wrote for the Justices of the Supreme Court of Virginia asking them to deny cert in Esser v. Commonwealth, 566 S.E.2d 876 (Va. Ct. App. 2002). In Esser, a mentally and physically challenged nineteen-year-old was told by her mother that she was being returned to her aunt's house. The girl began to cry hysterically and told her mother that her aunt's live-in boyfriend raped her and that she feared that she might be pregnant. The trial court found that the girl's statements were admissible as excited utterances, the Court of Appeals of Virginia affirmed, and the Virginia Supremes denied cert, agreeing with me that the statements constituted excited utterances.
In doing research on the matter, however, I found that several courts came to the opposite conclusion, with the majority of those courts being Texas state courts. For instance, in Mosely v. State, 960 S.W.2d (Tex. App. 1997), a three-year-old girl lived with her step-grandmother and frequently visited her father. She was allegedly sexually assaulted by her father on several of these visits. In the week before a visit with her father, the daughter "became agitated and 'panicky' at the prospect of returning to visit [her father]," crying and claiming that he had hurt her. The court found that these statements did not constitute excited utterances because "[t]he 'excitement' experienced by the declarant must be continuous between the event itself and the statement describing it."
In my article, I attacked Mosley and similar cases, noting that the the key to excited utterances is that they are made spontaneously while under the stress of some startling occurrence; there is no need that they be contemporaneous with the initial occurrence itself. Also, unlike some of the other exceptions derived from res gestae, excited utterances do not derive their reliability from the fact that the original startling occurrence is fresh in the memory of the declarant. I thus argued that a subsequent startling occurrence can form the predicate for an excited utterance about an earlier startling occurrence when the subsequent occurrence rekindles the original stress of the underlying occurrence, such as when an alleged victim is confronted with the prospect of being returned to her abuser.
Well, it looks like on Wednesday, the Court of Criminal Appeals of Texas, Texas' highest court for criminal cases, finally agreed with me in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In McCarty, Andrew Tyrone McCarty was convicted of two counts of indecency with his five-year-old step-daughter. One of the witnesses against McCarty was the complainant's grandmother, who testified over McCarty's objection that when the complainant's uncle tickled her, she began to cry and said, "Don't do that. I don't like being touched by boys and men no more. Andrew pulled up my blouse and was tickling my ribs and touched me." After being convicted, McCarty appealed, with his appeal eventually reaching the Court of Criminal Appeals of Texas.
The court noted that the excited utterance exception contained in Texas Rule of Evidence 803(2) allows for "[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." to be admitted as an exception to the rule against hearsay. The court the found that "under the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident" and affirmed McCarty's conviction.
So, there you have it. In any future criminal case, in Texas, a statement triggered by a subsequent startling occurrence should be able to from the predicate for an excited utterance about an earlier crime.