District Court Finds Statement After Domestic Assault Qualified as an 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 that it caused.

The recent opinion of the United States District Court for the District of Nevada in United States v. Howard, 2020 WL 1318790 (D.Nev. 2020), provides a pretty textbook example of a hearsay statement properly admitted this excited utterance hearsay exception.

In Howard, Wendolen Leonard Howard was charged with fourth-degree assault. This crime was based on Howard allegedly attacking his girlfriend, Tonya Pina. At trial, Pinya's friend, Cassandra Nichols, testified about what Pinya told her in the aftermath. In finding that this testimony was admissible as an excited utterance, the court held that

Pina's confession to Nichols that Howard had assaulted her is not excludable under the hearsay rule because it qualifies as an excited utterance under Federal Rule of Evidence 803(2). An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”¹¹ “When a hearsay statement is offered under this exception, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of utterance that [s]he did not reflect (or have an opportunity to reflect) on what [s]he was saying.”¹² “Rather than focusing solely on the time a statement was made,” courts must “consider other factors, including the age of the declarant, the characteristics of the event[,] and the subject matter of the statements.”

Pina's statement to Nichols that it was Howard who had assaulted her qualifies as an excited utterance under Rule 803(2). Nichols's eye-witness account of Pina's physical appearance at the time of the statement established that Pina was too distraught at the moment of utterance to reflect on her inculpation of Howard. Pina was shaking, crying, “a little bit hysterical,” bleeding, muddy, and wet. She had multiple, visible and fresh injuries to her face and neck. The beating that would cause the injuries that she suffered would have been startling, and the characteristics of that event plus Pina's appearance, behavior, and condition as reported by Nichols establish that Pina was still under the stress of that attack when she told Nichols that Howard was responsible for her injuries. So, Nichols's testimony that Pina told her that Howard had beaten her qualifies as an excited utterance under FRE 803(2) and is not excludable hearsay.

-CM