EvidenceProf Blog

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

Thursday, December 20, 2007

Carolina In My Mind: Charlotte Court To Determine Admissibility of Alleged Excited Utterances

Marlon Blandin has been charged with first-degree murder in connection with the death of Paul Behling in 1993, with his trial set to start in January 2008 in Charlotte County, North Carolina.  Prosecutors contend that Blandin shot and killed Behling after a cocaine sale between the two fell through.  Blandin recently brought a pre-trial motion seeking to have the results of a polygraph examination that he took deemed inadmissible at trial, and the court unsurprsingly granted it as polygraph results are generally inadmissible in American courts.

In the pre-trial motion, Blandin also sought to preclude Behling's widow from testifying about a telephone conversation that allegedly occurred between Blandin and Behling soon before the latter's death.  The prosecution wants to have Behling's widow testify that just prior to her spouse's death, he had a telephone conversation with a man he called "Marlon," but defense counsel claims that such testimony would constitute inadmissible hearsay.  The prosecution has countered that Behling's statements on the telephone were "spontaneous statements," which presumably means that the prosecution is arguing that they are admissible under the excited utterance exception to the rule against hearsay.  The court has deferred its ruling on the issue pending a hearing. 

Under North Carolina Rule of Evidence 803(2), a statement is admissible as an exception to the rule against hearsay if the statement related to a startling event or condition and was made while the declarant was under the stress of excitement caused by the event or condition.  According to the Supreme Court of North Carolina, for a statement to fall under the excited utterance exception, "there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication." State v. Morgan, 604 S.E.2d 886, 900 (N.C. 2004).

Thus, if Blandin and Behling were merely discussing their drug deal, and Behling had no reason to anticipate his impending death, Behling's statements likely did not constitute excited utterances, and his widow would not be able to testify about the telephone conversation.  If, however, Blandin said something that led Behling to believe that his life might be in jeopardy, Behling's statements likely constituted excited utterances, and his widow would be able to testify about the telephone conversation.  Of course, even in this latter scenario, Behling might have responded like Al Pacino's character in "Donnie Brasco," making it impossible for the court to determine whether his statements were excited utterances. 



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