Excited utterance hearsay exception authorized admission of statements

U.S. v. Frost, 2012 WL 27755696 (7/10/12) (Col.) (Published) - Child sex abuse victim's statements to her sister were admissible under the excited utterance hearsay exception. A.W. called her sister right after experiencing the startling events of rape and being kicked out of a house in the middle of the night. She was crying and visibly upset when she made the statements accusing the defendant of rape. The 10th discusses the factors relevant to determining whether statements in response to police questioning could be excited utterances. The more spontaneous the statements, the more stressful the event and the more open the questioning, the more likely the statements are admissible. Here A.W. was no longer in danger, but she alleged she had been through a traumatic ordeal and she spoke within an hour of the event. On the other hand, the officers asked detailed questions. Had the defendant objected at trial, a strong case against admissibility could have been made. But since the circumstances place the statements in the middle of the land between admissibility and inadmissibility, any error in admitting the statements was not "plain." Most of A.W.'s statements to a nurse fell within the medical treatment hearsay exception, such as whether, where and how A.W. was touched. But her identification of the defendant and her claims of loud resistance may not have been admissible. The identification statements were harmless because the defendant admitted they had sex. A description of loud resistance often will not be admissible, but it could be if it describes the location and intensity of pain. Here, because of the defendant's failure to object, the facts were not developed on this score. The hearsay error was not so blatant that plain error reversal was warranted even without factual development. Finally, the admission of A.W.'s later statements to another police officer did not meet the third and fourth prongs of the plain error test, since the defense first brought those statements up to show inconsistencies in A.W.'s account and whatever statements helped the government were cumulative. The failure to object reflected more a strategic choice, not an oversight, [as was true with respect to the other failures to object].
Before inviting the defendant to allocute, the d. ct. said "I will abide by the recommendation of probation and impose 200 months." Even if this violated the defendant's right to allocute, the error did not meet the 4th prong of the plain error test. The court did not accompany its comment with the trappings of a formal sentence and, after the court's announcement of its thoughts, the defendant spoke at length, apparently undeterred by the court's announcement. And, besides, on appeal the defendant does not explain what else he would have said to the d. ct. if the d.ct. had not said what it said.