Friday, April 1, 2011
Q & A: Court Of Appeals Of Mississippi Finds That Present Sense Impressions & Excited Utterances Can Come In Response To Questions
Like its federal counterpart, Mississippi Rule of Evidence 803(1) provides an exception to the rule against hearsay for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter." And, like its federal counterpart, Mississippi 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." And, as the recent opinion of the Court of Appeals of Mississippi in Sanders v. State, 2011 WL 813454 (Miss.App. 2011), makes clear, a statement can qualify as a present sense impression or an excited utterance even if it comes in response to interrogation.In Sanders,
In July 2006, Sherman [Sanders] began a physical confrontation with [Edna Mae] Sanders in their home in Diamondhead, Mississippi, where the couple lived with [Edna Mae]'s two children. While the circumstances leading up to the confrontation were disputed, it is certain that [Edna Mae] poured a pot of hot cooking oil on Sherman, causing instantaneous severe injuries and, eventually, Sherman's death.
When emergency responders arrived to assist Sherman, they found him alive and conscious. Before being taken to the hospital, Sherman made several statements to emergency responders regarding the incident in question, and, in doing so, implied that his wife had poured hot oil on him. Some time later, Sherman died in the hospital from his burn injuries.
Edna Mae was later charged with murder, and the prosecution admitted Sherman's statements to the emergency responders into evidence. After she was convicted, Edna Mae appealed, claiming, inter alia, that these statements were inadmissible hearsay.
The Court of Appeals of Mississippi disagreed, finding that they could have constituted present sense impressions, noting that
while simple questions may have been asked as to Sherman's condition, it is legitimate to perceive Sherman's response that his wife had burned him as Sherman's general present sense impression of what was happening to him and not necessarily specific answers to the responders' questions. It is reasonable to conclude that Sherman was in such a state of shock when speaking to responders that his statements were more likely the product of him reflecting on the circumstances than answering specific questions.
The court also found that these statements could have constituted excited utterances, noting that it had previously
held that "where the excited utterance is prompted by a simple question, even from an officer, such as 'What happened?' or 'What's wrong?' it may still fall under the exception."...Specifically, the Mississippi Supreme Court has held that the simple question of "What happened?" is "an example of a question that, while bearing upon the spontaneity requirement, does not necessarily preclude admission of the statement as an excited utterance."