Thursday, July 15, 2010
Drunk Dialing: Eighth Circuit Assumes 911 Call Was Improperly Admitted As Excited Utterance Based On Lack Of Personal Knowledge
Federal 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.
Meanwhile, Federal Rule of Evidence 602 provides that
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
And, as the recent opinion of the Eighth Circuit in United States v. Erickson, 2010 WL 2721026 (8th Cir. 2010), makes clear, a party cannot introduce an excited utterance unless it establishes that the declarant had personal knowledge of the startling event or condition.
In Erickson, Robert Erickson was charged with multiple counts of assault with a dangerous weapon and assault resulting in serious bodily injury, and the prosecution established, inter alia, the following facts at trial:
On January 1, 2008, Erickson attended a party at Sherry Erickson's residence at which some eight people had gathered and were drinking heavily throughout the night. Most of the individuals at the party were intoxicated, with the exception of Samantha Kitteaux, Erickson's cousin, who, because of her pregnancy, was not drinking. Erickson became increasingly agitated as the evening wore on, expressing anger that someone had stolen liquor from him and claiming that members of the group wanted to "jump him." At about 3:00 a.m. on January 2, Erickson became involved in an argument with Anthony Kitteaux. Erickson walked out of the residence and onto a front porch area. Anthony Kitteaux followed after him to see what Erickson was doing. In order to step outside, the parties had to pull back a blanket that had been hung over the doorway to provide additional insulation. As Anthony Kitteaux pulled back the blanket to look outside, Erickson slashed him across the face with a knife, leaving a large flap of skin hanging from Kitteaux's cheek. Kitteaux yelled, "ow, that mother f---er cut me" as he retreated back inside. Eli Antoine, who had been sitting inside, went to the door, whereupon Erickson swung the knife again, slashing Antoine across the palm of his left hand and lacerating the tendons and nerves connecting several of his fingers.
Erickson fled the residence on foot and several of the individuals who had been present at the party chased after him. Samantha Kitteaux and another individual, Frank Swalley, remained behind and made two 911 emergency calls as they attempted to help with the victims' wounds. During the second 911 call, Frank Swalley got on the phone and identified Erickson as the assailant. After arriving on the scene and briefly speaking with the witnesses, the police began searching for Erickson and apprehended him within walking distance of the residence. Erickson was arrested and taken to the local jail, where the officers took pictures of what appeared to be blood on his hands.
Frank Swalley testified that Erickson became agitated during the evening and was hollering about someone trying to jump him. But Frank Swalley had no recollection of the stabbing or making a 911 call. Rather, he claimed that he had passed out from drinking and was awakened only after the assaults had already taken place. He testified that after he woke up he saw blood gushing from Eli Antoine's wound and used his belt as a makeshift tourniquet to stop the bleeding.
The prosecution later introduced testimony from a 911 dispatcher who claimed "that an individual named 'Frankie'-recognized now as Frank Swalley-had identified Erickson as the attacker."
After he was convicted, Erickson appealed, claiming, inter alia, that Swalley's statements to the 911 dispatcher were inadmissible hearsay. The Eighth Circuit found that Swalley's statement met all of the requirements to qualify as excited utterances under Federal Rule of Evidence 803(2) but found that
The problem with the government's argument...[wa]s that the trial testimony did not make it clear how Swalley obtained the information that he related over the phone. The trial testimony indicated that Frank Swalley had passed out from drinking and was awakened only after the attack had already occurred. As related above, Frank Swalley testified that he had no recollection of the 911 call. The lack of detail in the trial record thus makes his statement difficult to evaluate because it is not clear how he came to the conclusion that Erickson had committed the crime.
According to the court,
In this case there are a number of conceivable explanations for Frank Swalley's belief that Erickson was the assailant-for example, someone who witnessed the attack could have told him; he might have observed people leaving the residence to chase after Erickson; or he could have based his conclusion on his earlier observation of Erickson's erratic, aggressive behavior. Because there is no way to identify the basis of the statement with any certainty, however, it is problematic whether it was properly admitted as an excited utterance.
I would go a bit further than the Eighth Circuit. By Swalley's own admission, he did not observe the assault but merely woke up in its aftermath. It is thus clear that he did not have personal knowledge of the assault and could not have testified regarding the assault or had his statements regarding the assault admitted under an exception to the rule against hearsay. In effect, the Eighth Circuit assumed the same result but found that any error in admitting Swalley's statements was harmless giving the otherwise overwhelming evidence of Erickson's guilt.