Sunday, January 17, 2021
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.
So, should this excited utterance exception apply to a 911 call about a stolen gun. That was the question addressed by the First Circuit in its recen opinion in United States v. Estes, 2021 WL 128707 (1st Cir. 2021).
Katherine Hutchins ran a house cleaning service. On the morning of November 13, 2017, she and her boyfriend of a few months, [Scott[ Estes, had just finished cleaning a house together and were leaving the job. Hutchins was driving. During the car ride, Hutchins learned that Estes had stolen a firearm from the house that they had just cleaned. Estes loaded this firearm, showed it to Hutchins, and pointed it at her. Estes had previously told Hutchins that he was a felon and could not have a gun. She also believed that he might be using drugs because he was behaving erratically and had needles in his pocket.
During the car ride, at approximately 11:20 AM, Hutchins called 911.1 When she made the 911 call, Estes had temporarily left the vehicle to help another motorist. Hutchins began the call by stating that Estes “loaded a gun, and he has it in his pocket and he's a felon.” The 911 dispatcher said that he would send officers to her location. She then told him that she would have to pretend to be speaking to someone other than the police because she did not want to “get shot.” She further explained that Estes had “needles in his pocket,” was “not good,” and had loaded the gun and pointed it at her, causing her to be “a little nervous right now.” She added that she was “shaking” and “scared,” and implored the police to take her call “really seriously right now.” The 911 dispatcher assured her that the police were taking her call seriously and again told her that he was sending officers to her location.
At that point, presumably because Estes had re-entered the vehicle, Hutchins began pretending to speak to her credit card company. The 911 dispatcher played along with Hutchins' ruse, encouraging her to “keep makin[g]...conversation.” After a few minutes, Hutchins told the 911 dispatcher that Estes was running into his friend's apartment and that, as soon as officers arrived, she would show them where Estes had gone. She reiterated that Estes was “probably going to shoot [her],” adding that she was “nervous” and “scared shitless.” The 911 dispatcher told her that he wanted to ensure that she was safe and asked her to stay on the phone with him until officers arrived at the scene. They discussed which apartment Estes had entered, and she volunteered additional information, including Estes' name and birthdate. Officers then arrived, and Hutchins ended the call.
At Estes's trial for possessing a stolen firearm and being a felon in possession of a firearm, the State played the recording of the 911 call, and Estes was convicted. On appeal, the First Circuit upheld the decision to admit the 911 call, ruling that
Under the “Excited Utterance” exception, a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is admissible. Fed. R. Evid. 803(2). At the time Hutchins placed the call, Estes had recently pointed a loaded gun at her, which is unquestionably a startling event. Although some time had passed, Hutchins was still “under the stress of excitement” for the duration of the call,...especially given that Estes was still nearby with the gun.