Saturday, November 7, 2009
A Shock To The System: Court Of Appeals Of Texas Makes Difficult Determinations On Excited Utterances In Assault Appeal
Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for an "excited utterance," i.e., "[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." The rationale behind the excited utterance exception is that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness. Based upon this rationale, I am not sure that I can agree with the recent opinion of the Court of Appeals of Texas, Texarkana, in James v. State, 2009 WL 3643554 (Tex.App.-Texarkana 2009).
Valentine appeared at the house of her mother, Robbie Denise Cooks, sporting a newly-acquired swollen eye. Cooks promptly called the emergency 9-1-1 number and informed the dispatcher that "this guy named Cedric James has jumped on my daughter" and she "got a big knot upside her head-beside her eye." Valentine, who was not served with a subpoena, did not appear at James's trial. Instead, Cooks was called to testify that her daughter had come to her house "crying, her eye was swollen." Over hearsay objections, Cooks claimed that Valentine "said that her and Cedric got into it." However, no objections were lodged at a later time during Cooks's testimony when she repeated that "[Valentine] said they was arguing" and "[t]hey had got into it." Cooks then told the jury she did not remember what Valentine said and just "assumed they must have been fighting." During cross-examination, Cooks clarified that Valentine did not actually say that James had struck her and that "[s]he didn't actually tell me that they got into it."
In addition to the evidence provided by Cooks, the State presented testimony from Officer Justin Mills of the Marshall Police Department, who discussed the condition of Valentine's eye and told the jury Valentine was still upset and crying when he talked to her. Over hearsay objections, Mills was allowed to testify that "[s]he said that her boyfriend, Cedric James, hit her in the face." Yet, subsequent testimony that Valentine said, "Cedric James was the one that hit her,” was met with
Now, based upon these facts alone, it would seem clear that the trial court did not err in admitting Valentine's statements through the testimony of Cooks and Mills because they certainly seemed to be excited utterances under Texas Rule of Evidence 803(2) (even though Cooks' contradictory testimony seems problematic). But, on James' subsequent appeal, the Court of Appeals of Texas, Texarkana, noted a few other facts. First, Mills apparently testified that with regard to Valentine that “[b]y the time we got there, I mean, I'm sure the shock had worn off." The court, however, shrugged off this testimony, noting that Mills also testified that he “had to calm [Valentine] down to find out, you know, where the actor might be at” and that Valentine's answer to a standard form provided by Mills said she would feel danger after the officer left."
Second, Cooks apparently testified that Valentine was not "excited" when she made the aforementioned statements to her. The court again shrugged off this testimony, concluding,
The word “excited” has many connotations. We believe the trial court was in the best position to determine how Cooks interpreted the term based on Cooks's expressions during her testimony.
Now, I don't want to take the court to task for its opinion because the above facts certainly provide strong indications that Valentine was exhibiting signs of stress when she made the subject statements. That said, the excited utterance exception is premised upon the declarant being under the stress or shock of excitement caused by a startling event or condition when making a statement regarding that even or condition. And in James, one witness testified that he was sure that the shock had worn off when the declarant made her statements, and the other witness testified that the declarant was not "excited" when she made her statements. Based upon these facts, it seems difficult to conclude that these statements were excited utterances.