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

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Tuesday, December 29, 2009

As I Lay (Not Quite) Dying: Ohio Opinion Reveals Why Excited Utterance Exception Is Useful Backup To Dying Declaration Exception

Like its federal counterpartOhio Rule of Evidence 803(2) provides an exception to the rule against hearsay 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.  

Also like its federal counterpartOhio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay, in a prosecution for homicide of in a civil action or proceeding, for:

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impeding death.  

The recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. McGee, 2009 WL 4547716 (Ohio App. 7 Dist. 2009), underscores the fact that if you can't quite get a statement admitted as a dying declaration, you likely can get it admitted as an excited utterance.

In McGee, Gregory McGee was convicted of one count of murder and other crimes based upon the shooting death of Charles Bush

At a motions hearing..., the trial court received the testimony of Detective Douglas Bobovnyik for the purpose of ruling on [McGee]'s motion in limine to exclude Bush's alleged "dying declaration." According to his testimony, he responded to a call on the police radio involving a shooting....He found Bush lying on his back in the living room. He was the first officer on the scene....

According to Bobovnyik, there was one woman and two or three men in the room with Bush, including Mr. Tondo....Bush appeared to be shot in the chest just below the armpit on his left side....There was no bleeding outside of his body, but he was struggling to breathe. Based upon the location of the bullet wound, Bobovnyik believed that Bush was going to die....

Bobovnyik testified that he told Bush that he was shot in the side and "[t]hat's real serious."...He told Bush that he may not recover from his wounds, and Bush acknowledged that he was hurt "real bad" and that he might die...Bush identified "Greg McGee" as the man who shot him.

Based upon Bobovnyik's testimony, the court denied McGee's motion. Neither Martina Moore nor William Tondo testified at the motions hearing. Thereafter, at trial, 

Moore testified that Bobovnyik told Bush that, "it doesn't look good and he may not make it," but that Bush did not respond to Bobovnyik's statements....Tondo testified that Bobovnyik's conversation with Bush consisted of little more than the acknowledgement that "Greg McGee" was the man who shot him.  

After he was convicted, McGee appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to subpoena Moore or Tondo to testify at the motions hearing, which would have led to Bush's statement being deemed inadmissible at trial. According to McGee, their testimony would have contradicted Bobovnyik's testimony and shown that Bush's statements were not made while he believed his death to be impending.

The Court of Appeals disagreed, finding that "Even assuming that the trial court would have refused to admit Bush's statement as a dying declaration, the statement could have been admitted as an excited utterance." In other words, the startling event was the shooting, Bush was under the stress of the shooting when he spoke, and his statement concerned the shooting, rendering it admissible as an excited utterance.

As you can see from McGee, the excited utterance exception typically applies when the dying declaration doesn't quite apply. So, if you face a case where a speaker is knocking on heaven's door, but the door isn't yet open, you should be able to admit the speaker's statements as excited utterances even if they don't quite qualify as dying declarations.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/12/dying-dec-eustate-v-mcgeeslip-copy-2009-wl-4547716ohio-app-7-dist2009.html

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