Saturday, February 7, 2009
Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles
The recent opinion of the Supreme Court of the Territory of Guam in People v. Jesus, 2009 WL 259373 (Guam Terr. 2009), reveals important aspects of both the Confrontation Clause and the excited utterance exception to the rule against hearsay.
In Jesus, on the night of August 3, 2007, EMTs and police officers found Julie Sandra Muna Gadia in critical condition after being run over by a truck belonging to her boyfriend, Jesus. Gadia experienced such a degree of physical trauma that she could not verbally respond to questions during the next six days. On August 9th, however, Gadia was able to speak to Officer Donald Nakamura, who, at Jesus' trial for two charges of misdemeanor assault and one charge of misdemeanor family violence, read the following from the report of his interview with Gadia:
"I inquired from...Gadia if it was an accident. [G]adia informed me in a low, slurred tone of voice, that he did it on purpose. I inquired from her to whom was she referring to. [G]adia stated, 'Junior, my boyfriend.'... Gadia in a low tone of voice stated that it was over her coworker. [G]adia started coughing heavily and started to moan. I then ceased the interview and told her that we will come back at a later time to interview her. [G]adia informed me that she was afraid of Junior and does not want to see him, that she wanted him to go to jail in regards to what he did to her."
Officer Nakamura also spoke to Gadia the following day, and at Jesus' trial, he read the following from the report of his interview with Gadia:
"[G]adia started to cry and stated that she is scared that he might come after her. I assured her that it will not happen. [G]adia continued to cry and called out her mother. [G]adia was still crying and stated they were going down, he stopped and told her to get out of the car. [G]adia, who by now was hysterical, stated that she was trying to move away from him. [G]adia stated, 'He just ran me over like it was nothing. God help me not to die.' She then stated that he tried to jack up the car and then tried to pick it up. [G]adia stated that she pleaded for help from him and even told him that if he doesn't, she will die."
Gadia also took the witness stand at Jesus' trial, but she testified:
"that she did not remember speaking to Officer Nakamura on August 9, 2007. Although Gadia testified that she remembered that two officers were asking her questions on August 10, 2007, she did not remember what was said. Gadia also testified that she had been unconscious for a period of time and had memory loss."
After Jesus was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed Officer Nakamura to read from his reports because Gadia's statements were inadmissible hearsay and because Gadia was "unavailable" at trial, meaning that the admission of her statements violated his rights under the Confrontation Clause.
The court agreed with Jesus that Gadia was "unavailable" as that term is defined in Guam Rule of Evidence 804(a)(3) because she testified to a lack of memory. But at the same time, the court noted that the United States Supreme Court has found in United States v. Owens, 484 U.S. 554 (1988), that:
"The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. [T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony."
Therefore, there was no Confrontation Clause problem with the admission of Gadia's statements. But was there a hearsay issue? The court answered that question in the negative as well, at least with regard to Gadia's first statement to Nakamura. According to the court, Gadia's first statement constituted an excited utterance under Guam Rule of Evidence 803(a)(2) because it was "[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."
Of course, you might wonder how Gadia's statement could have been considered an excited utterance when it came almost a week after the incident at issue. Well, the court correctly noted that:
"In cases where a declarant has lost consciousness or the ability to speak after sustaining fatal or nearly fatal wounds, declarant's accusatory statement made upon regaining consciousness or recovering the ability to speak is often admissible under an excited utterance exception to hearsay, despite the lapse of time. See, e.g., Apolinar, 155 S.W.3d at 189-90 (finding admissible declarant's statements made after a period of four days of unconsciousness, being under anesthesia and having undergone surgery as a result of being attacked); People v. Watkins, 230 N.W.2d 338, 339-40 (Mich.Ct.App.1975) (finding that the declarant had lost a lot of blood, was in pain and 'at times appeared unconscious and in a state of shock' was sufficient to admit statements as 'excited utterances' despite fifteen to forty-five minute lapse in time). In State v. Plummer, the New Hampshire Supreme Court found the declarant's statements were 'excited utterances' where the declarant 'lapsed in and out of consciousness....was in a state of intoxication throughout this period, and due to the severity of the injuries was in considerable pain.' 374 A.2d 431, 434 (N.H.1977). In State v. McHoney, the Supreme Court of South Carolina found that where the declarant's throat had been cut and she was unable to speak, the declarant's delayed statements were still excited utterances. 544 S.E.2d at 34-35 & n. 3."
For the reasons I stated in my article, A Shock to the System, 12 WM. & MARY J. WOMEN & L. 49 (2005), I agree with this conclusion and thus also agree that Gadia's first statement was properly admitted. Of course, I also agree with the court that Gadia's second statement on August 10th was made while she was no longer under the stress of the startling incident and thus improperly admitted. The court, however, found that error to be harmless in light of the other evidence of Jesus' guilt, including Gadia's first statement.