Heat of the Moment: 8th Circuit Applies Rigorous Analysis to Excited Utterance Issue

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, how does a court determine whether a statement was made while the declarant was under the stress of excitement caused by a startling event or condition? The recent opinion of the Eighth Circuit in United States v. Graves, 756 F.3d 602 (8th Cir. 2014), does a great job of breaking out this analysis.

In Graves, Brian Gordon Graves was charged with Assault with a Dangerous Weapon and Domestic Assault by an Habitual Offender. The evidence adduced at trial indicated that

Graves and his fiancée L.K. were involved in an all-day argument. At some point during the day, Graves left their shared residence. He returned between 10:00 p.m. and 11:00 p.m., kicked in the front door, and confronted L.K. in the back bedroom of the home. During this confrontation, Graves held a loaded shotgun. After 10 to 15 minutes of arguing, Graves left the residence. As he departed, he fired the shotgun five times.

A neighbor called 911 to report the gun shots. Officer Dana Lyons responded. It took Officer Lyons approximately 20 minutes to travel to the residence after being dispatched. When he arrived, he knocked on the front door, and L.K. answered. Officer Lyons observed that L.K. was shaking and appeared to have been crying. Officer Lyons told L.K. that there had been a report of shots being fired and asked, “What’s going on here?” L.K. responded by recalling the details of the fight she had with Graves, including the fact that Graves had pointed the shotgun at L.K. and threatened to shoot her in the head.

The district court deemed evidence concerning L.K.’s statements admissible as excited utterances, prompting Graves’s appeal after he was convicted.

On appeal, the Eighth Circuit noted that

to decide the specific question of whether a declarant remains “under the stress of excitement” caused by the event when the declarant makes the statement, courts consider several factors: “[1] the lapse of time between the startling event and the statement, [2] whether the statement was made in response to an inquiry, [3] the age of the declarant, [4] the physical and mental condition of the declarant, [5] the characteristics of the event, and [6] the subject matter of the statement.” 

Here’s a thumbnail of what the court found under each of these factors:

In looking at the factors noted above, first the lapse of time in this case—approximately 30 minutes—is seemingly long for the typical application of the excited utterance exception; however, we have previously allowed the inclusion of excited utterances in a similar factual scenario….

Second, Officer Lyons testified that L.K. was shaking and appeared to have been crying when she answered the door immediately before giving the statements. L.K.’s state of distress before she gave her statements supports a finding that L.K.’s statements were “spontaneous, excited or impulsive rather than the product of reflection and deliberation.”…

Third, L.K. offered her statements to Officer Lyons in response to his general inquiry into what had happened. This question was not the detailed, interrogation-style questioning that might negate the use of the excited utterance exception….

Finally, L.K.’s statements described the argument with Graves, including his placing the gun to her head and threatening to shoot her. The characteristics of such an interaction are the type of event that would cause a reasonable person to experience the type of stress and shock L.K. exhibited.

(Hat tip to my former colleague Marc Ginsberg for the link)

-CM