First Circuit Finds That Excited Utterances Can Follow Subsequent Startling Events

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.

Back in 2005, in my article, “A Shock to the System,” I argued that this “excited utterance exception should apply to subsequent starting events that re-ignite the flame of stress caused by an initial incident. In its recent opinion in United States v. Irizarry-Sisco, 87 F.4th 38 (1st Cir. 2023), the First Circuit reached this same conclusion.

In Irizarry-Sisco, Minor Y was alleged sexually assaulted by Wally Irizarry-Sisco at the Marbella. At trial,

one of Minor Y’s neighbors, Wanda Pagan-Colon, testified that Minor Y and her sister were visiting Pagan’s house when Minor Y thought she heard the sound of Irizarry’s Suzuki Vitara outside. After Minor Y told Pagan and her sister to “listen,” she “got very nervous. Her eyes got really big. She started moving her fingers, and she started looking everywhere when she said that she heard the sound of the car.” Only about a week had passed since the Marbella motel incident. After hearing the truck, Minor Y’s sister mentioned that their mother did not “want Old Man Wally at the house.”

Seeing Minor Y’s distress, Pagan asked if Irizarry had done anything to her. Pagan testified, over Irizarry’s objections, that while Minor Y initially denied that anything had happened, she was acting very nervous and unusual and so Pagan “insist[ed] and [she] asked [Minor Y], did he do anything to you?” Minor Y got even more nervous and said, “Yes, Ti-Ti.” Pagan then asked, “What did he do? Tell me what he did to you.” Minor Y began to explain, but Pagan asked, “[W]hat he has between his legs, did he put it in your woo-woo?” Minor Y responded, “Yes, Ti-Ti.” Pagan asked, “What else happened?” Minor Y reportedly told her, while crying, that “some white stuff came out.” When Pagan later looked out of her window, she indeed saw Irizarry’s truck parked across the street outside Minor Y’s house.

On appeal, Irizarry argued that Pagan’s testimony concerning Minor Y’s statements was hearsay improperly admitted by the district court under the “excited utterance” exception. 

In denying this appeal, the First Circuit held, inter alia, that

We find persuasive the reasoning of our sister court in Napier, in which a victim of a violent assault, roughly eight weeks after the attack, was ‘re-excited’ after being shown a newspaper photograph of her alleged attacker by her sister at home. 518 F.2d at 317. The victim’s sister testified that the victim’s “immediate reaction was one of great distress and horror and upset,” and that the victim “pointed to it and she said very clearly, ‘He killed me, he killed me.’”…The Ninth Circuit looked at the effect on the victim and found that the victim’s “suddenly and unexpectedly” being “confronted with a photograph of her alleged assailant” was a sufficiently startling event to qualify under the rule….While seeing a newspaper photograph was not in and of itself an event that might typically be considered ‘startling,’ its connection with a previous startling event — even one remote in time — imbued it with that quality in light of the effect that it had on the victim. See id.

Similarly, Pagan explained that after hearing the sound of Irizarry’s truck, Minor Y “got very nervous. Her eyes got really big. She started moving her fingers, and she started looking everywhere when she said that she heard the sound of the car.” She also began to cry and continued to do so throughout her conversation with Pagan and her sister. Minor Y testified at trial that when she heard the sound of Irizarry’s truck, she knew “he was going to my house to get me.” Pagan went as far as to characterize Minor Y as “hysterical” during their conversation.

While hearing a truck is not in and of itself startling, when that truck is associated with the two recent sexual assaults that Minor Y had allegedly experienced, hearing that sound could have had the potential to ‘re-excite’ Minor Y (and clearly seemed to do so). The prospect of a third consecutive weekend of sexual abuse, when the second had been a dramatic escalation from the first, was undoubtedly frightening for Minor Y. We cannot say, at least under the first prong, that the district court abused its discretion in determining that hearing Irizarry’s truck was a startling event for Minor Y.

-CM