Subtext: Supreme Court Of Nevada Finds Text Messages Admissible As Excited Utterances In Kidnapping/Battery Case

A professor on the Evidence Professor listserv a few days ago asked about cases considering whether text messages are admissible under the excited utterance exception to the rule against hearsay. One such case is Funches v. State, 2012 WL 436635 (Nev. 2012), which is interesting for a few reasons.

Unfortunately, the Funches opinion doesn't provide much in the way of facts. What we do know is that Anthony Funches was convicted of first-degree kidnapping and battery resulting in substantial bodily harm. After he was convicted, Funches appealed, claiming that the trial court made two errors with regard to text messages.

First, Funches argue[d] that the district court erred by admitting his brother's testimony that he received a text message from another witness stating that Funches and two other people had "jumped" the victim. Funches assert[ed] that this statement, which was admitted as non-hearsay showing the effect of the text message on his brother, was inadmissible hearsay, irrelevant, and highly prejudicial.

The Supreme Court of Nevada agreed but "conclude[d] that the error was harmless in light of Funche''s own admissions that he and his two codefendants kicked and punched the victim." 

Second, Funches contend[ed] that the district court erred by admitting, under the present-sense-impression hearsay exception, a witness's text messages regarding earlier events. 

The court again (partially) agreed, finding that some of the text messages were inadmissible under NRS 51.085, which indicates that

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is not inadmissible under the hearsay rule.

According to the court,

The text messages, which were written by the witness shortly after she woke up, involved events that occurred before she went to sleep approximately one to two hours earlier, and thus were not made contemporaneously with the events.

But the court then found that 

The State argues persuasively that the text messages were admissible under the excited utterance exception because the witness's testimony indicated that she was under the stress of the startling event of seeing Funches and his two codefendants changing their bloody clothes after having been outside with the victim.

That excited utterance exception, contained in NRS 51.085, indicates that

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 is not inadmissible under the hearsay rule.

And, according to the court,

The State argue[d] persuasively that the text messages were admissible under the excited utterance exception because the witness's testimony indicated that she was under the stress of the startling event of seeing Funches and his two codefendants changing their bloody clothes after having been outside with the victim.

Again, the court's opinion is short on facts, so I am not sure exactly how to read its conclusion? First, did the court find that the witness actually saw the subject battery or just Funches and his two codefendants changing their bloody clothes? Second, what was the startling event? Was it the battery? Was it the changing of bloody clothes? Was the changing of bloody clothes part of the battery for "startling event" purposes, or was it a separate startling event? And, if it was a separate startling event, was the court saying that this separate startling event could retrigger the stress associated with the battery and allow for the text messages to be admissible as excited utterances?

I don't have enough facts to answer any of these questions, but I do agree with the principle that subsequent startling events related to prior startling events can form the basis for the admission of excited utterances. See Colin Miller, A Shock to the System:  Analyzing The Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005).

-CM