EvidenceProf Blog

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

Sunday, June 20, 2010

Plenty Of Time: Tenth Circuit Finds Statement Made Almost 2 Hours After Sexual Assault Qualified As Excited Utterance

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.

And, as the recent opinion of the Tenth Circuit in United States v. Smith, 2010 WL 2197524 (10th Cir. 2010), makes clear, even statements made several hours after a startling event or condition can qualify as excited utterances.

In Smith, Lehman Smith,

an Indian, and the victim, “Jane Doe,” both attended a party at a hogan [(a type of traditional Navajo dwelling)] located in the Navajo Nation. They and other attendees at the party consumed beer, and some used drugs. The party broke up after midnight. While everyone else left the hogan, Smith and Jane Doe remained. Jane Doe fell asleep on a couch at around 2:00 a.m.

Jane Doe awoke to find Smith having sex with her. She pushed Smith off, confronted him, and fled the hogan. She sought assistance at a neighbor's trailer, claiming she had been raped. She then called the police. Jane Doe was taken to an emergency room. DNA samples taken by an examining doctor were later matched to Smith.

Smith was later charged with knowingly engaging and attempting to engage in a sexual act with a person incapable of apprising the nature of the conduct and of communicating unwillingness to engage in the sexual act, in Indian Country. At trial, the neighbor testified that, at approximately 4:30 a.m., she answered the door and found Jane Doe crying and screaming-"Help me, help me. He raped me." 

After Smith was convicted, he appealed, claiming, inter alia, that Jane Doe's statement should have been excluded as inadmissible hearsay. The Tenth Circuit disagreed, easily finding that Jane Doe's statement related to the starling evident of being sexually assaulted and that she made her statement while under the stress of excitement caused by the event. Smith claimed that too much time, almost 2 hours, had passed between the alleged act and Jane Doe's statement, rendering Federal Rule of Evidence 803(2) inapplicable. The Tenth Circuit disagreed, finding:

Nor does the passage of time suggest the stress had dissipated. Other courts have found the excited-utterance exception applies where more time elapsed between the startling event and the excited statement. For example, in United States v. Cruz, 156 F.3d 22 (1st Cir.1998), the First Circuit held a statement could be admitted as an excited utterance when there was a four-hour delay between a violent domestic altercation and statements made by the victim at a battered women's shelter. See id. at 30 (cited with approval in Pursley, 577 F.3d at 1221). Similarly, in United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Second Circuit ruled a statement could be admitted under the excited-utterance exception where three hours passed between the discovery that people were in a burning building and the declarant's statement that he was involved in the arson. See id. at 128 (also cited with approval in Pursley, 577 F.3d at 1221). And, we have noted that a statement made by a child the day after being molested could have been admitted as an excited utterance where the child was described as frightened and on the verge of tears when the declaration was made. See United States v. Farley, 992 F.2d 1122, 1123, 1125-26 (10th Cir.1993). Here, less than two hours after being raped and only upon escaping from Smith, Jane Doe-still under obvious stress from the attack-made the statement to the neighbor.



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