Statements by Deceased Properly Admitted as Excited Utterances

U.S. v Magnan, 863 F.3d 1284 (7/20/17) (Okl.) (Published) - The 10th holds the district court did not abuse its discretion when it admitted under the excited utterance hearsay exception three statements by the deceased identifying Mr. Magnan as the person who shot her. The first statement was contemporaneous with the excitement the startling event caused even though it occurred one and a half to two hours after the event and in response to the direct question "who shot you?" The 10th acknowledges a spontaneous statement is more likely to qualify as an excited utterance than an answer to a question, but if the excitement is severe the response may not be the product of reflective thought. Here the deceased was partly paralyzed, bleeding, very anxious and having trouble breathing at the time of the statement. The 10th finds it unlikely the deceased would be so "nonchalant about her condition she would calculate who she might unfairly blame for her injuries." While a victim's dire condition might call into question the accuracy of her statements, that is a credibility matter for the jury to determine as long as the statements are not the product of conscious fabrication. The second statement was okay to admit as well. It came about two hours after the event in response to a general "what happened?" question. The 10th indicates a general question is more likely to spur a response that fits within the excited utterance exception than a direct question. The deceased was still "within the temporal range of trauma." She was unstable, approaching shock, while strapped to a backboard and receiving fluids from an IV. The admission of the third statement was also okay, the 10th says, although it's a closer question. 4 or 5 hours after the event the deceased spontaneously reacted to the arrival of her sister in her hospital room. The 10th admits the time element increasingly favored exclusion. But time is only one factor. The "horrific" nature of the shooting and the deceased's medical condition gave the deceased a "reasonable basis for continuing emotional upset," the 10th says. Her sister described the deceased as "scared" and "anxious." The 10th finds "important" the fact that the statement was "entirely spontaneous." Given the extent of the deceased's injuries, the rendering of medical aid did not constitute an intervening event that would dilute the effect of the trauma, the 10th concludes. The 10th explicitly declines to decide if the excited utterance exception should be eliminated altogether because excitement impairs accuracy, since Mr. Magnan did not raise the issue.