In United States v. Lundy, the United States Court of Appeals for the Sixth Circuit ruled that Federal Rule of Evidence 803(2), which provides an exception for an “excited utterance” to the rule against hearsay, applies even if there is testimony contradicting the existence of an excited utterance.
The Court also ruled that the excited utterance was not testimonial in nature, therefore, it did not violate the defendant’s Sixth Amendment right to confrontation.
The Facts & Procedural History
Police responded to a disturbance at a home, but were told upon arrival that the defendant, Michael Lundy, who was drunk, had already left the scene. The officers left and returned approximately 15 minutes later when they received a call that Lundy came back and pointed a gun in Alyssa Kirk’s face, the mother of his children. Police arrived about two minutes after they were called back.
This is conversation between the police officer, a witness, and the victim, Kirk:
“Courtney Ernst: He came back . . .
Officer Martin: So who saw a gun?
Alyssa Kirk: We all did.
Courtney Ernst: All of us. And he cocked it back too.
Alyssa Kirk: In my face.
Courtney Ernst: Literally.
Officer Martin: In your face?
Alyssa Kirk: [Nods.]
Officer Martin: And what did he say?
Courtney Ernst : He said ‘anybody could get it,’ that’s what he said.
Alyssa Kirk: Yeah, my adrenaline was so rushed, I can’t even . . .
Officer Martin: You don’t seem very upset for someone who just had a gun pointed in their face. [Emphasis mine]
Alyssa Kirk: My whole . . . I’m trying not to like . . . My kids are around me. My body is shaky. I’m not really trying to flip out right now. I have adrenaline pumping through me at the second.”
This conversation was captured on a bodycam. The government introduced Kirk’s statement that Lundy pointed a gun in her face at trial. The defense objected, arguing that her statement was hearsay, violated Lundy’s Sixth Amendment right to confrontation, and was inadmissible. The trial court ruled for the government and admitted the statement.
Lundy was found guilty and the defense appealed the trial court’s rulings.
The Law
The Federal Rules of Evidence prohibit hearsay evidence. Hearsay is a “statement that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted.”
There are exceptions to the rule against hearsay evidence. One such exception is for an “excited utterance.” 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.”
The Court’s rule for when the excited utterance exceptions applies is as follows:
“The excited-utterance exception applies if three conditions are met: (1) ‘there must be an event startling enough to cause nervous excitement,’ (2) ‘the statement must be made before there is time to contrive or misrepresent,’ and (3) ‘the statement must be made while the person is under the stress of the excitement caused by the event.'”
The Sixth Amendment secures a defendant’s right to confront witnesses who testify against him. The United States Supreme Court has ruled that this right applies only to “testimonial” statements. A testimonial statement is one whose “primary purpose” is to “creat[e] an out-of-court substitute for trial testimony[,]” as opposed to one whose primary purpose is to help the police “meet an ongoing emergency.”
The Court’s Reasoning — Excited Utterance Exception
The Court reasons that because “Lundy forced his way inside the home and pointed a loaded gun at her[,]” the first condition under its excited utterance rule is easily met.
The second condition is met because Kirk didn’t have enough time to “contrive or misrepresent” what happened. The Court emphasizes that “[n]o rigid rule dictates how long is long enough to contrive or misrepresent. Instead, the timeline varies based on factors like the intensity of the startling event and the age of the person giving the statement.”
Because “[a] drunk person forcing his way inside and shoving a loaded gun in your face—in front of your young children—is on the higher end of the startling-event spectrum[,]” the second condition is satisfied.
The third condition is satisfied because Kirk told the officer “[m]y body is shaky . . . I have adrenaline pumping through me at the second.” The Court finds this testimony sufficient to show that the statement was “made while the person is under the stress of the excitement caused by the event.”
The Court discounts the officers seemingly contradictory testimony when he told Kirk that she didn’t “seem very upset for someone who just had a gun pointed in their face[,]” and explained it this way:
“True, Officer Martin didn’t think she looked particularly frightened at the time. But Officer Martin later qualified this statement in his trial testimony. There, he explained that Kirk is a repeat domestic violence victim, which could have impacted her reaction. Officer Martin also recognized that Kirk was trying to remain calm in front of her children. Even if Officer Martin hadn’t backed off his earlier statement, Kirk’s and Officer Martin’s conflicting testimony would show—at most—that there were multiple ways to view the evidence. The [trial] court didn’t abuse its discretion in deciding to credit one of them.”
The Court’s Reasoning — Confrontation Clause
The Court shoots down the defense’s claim that Lundy was denied his Sixth Amendment right to confrontation, reasoning that:
“Lundy—a convicted and armed felon—threatened Kirk mere minutes before Officer Martin arrived. When Kirk told the officer what happened, Lundy’s location was unknown. Nobody knew if or when he’d return—or what more he might do. These are strong indicators that the ‘primary purpose’ of Officer Martin’s interrogation was to help the police ‘meet an ongoing emergency.'”
The Court affirms the trial court on both counts.
The Bottom Line
The Court got it right on both the hearsay exception and the Confrontation Clause.
The trial court made a discretionary call on a set of facts that could support a decision to apply or not apply the exception. In fact, the Court points out that “at most— [] there were multiple ways to view the evidence. The [trial] court didn’t abuse its discretion in deciding to credit one of them.”
The Court says simply that the trial court did not “abuse its discretion” when it ruled for the government, and apparently would not have done so had it ruled for the defendant, under these facts.
True, the officer testified that he didn’t believe Kirk “seem[ed] very upset for someone who just had a gun pointed in their face[,]” contradicting Kirk’s testimony that she was in fact shaken by the event. However, the circumstances and context of this particular event coupled with Kirk’s testimony should hold greater weight than the contradictory testimony of the officer, particularly after he testified “that Kirk is a repeat domestic violence victim, which could have impacted her reaction.”
In short, evidence of the excited utterance cut in favor of the government’s argument that the excited utterance exception applies.
The Confrontation Clause issue is an easy call. The facts and testimony show that Kirk was helping the officer “meet an ongoing emergency” by answering questions and providing information to that effect. Their conversation did not sound like one in which Kirk was providing incriminating information about Lundy to be used against him later in court. Her statements were not testimonial and, therefore, not protected by the Sixth Amendment.
The trial court made the right call — and so did the Court.
John Q. Prosecutor