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November 01, 2019 Trial Tactics

Defendant’s Excited Utterance

Stephen A. Saltzburg

Nothing is clearer in the law of evidence that a voluntary statement by a defendant is admissible against him or her as a “party opponent statement” or an “admission” as long as it is relevant to a charged offense regardless of whether the defendant had personal knowledge of the contents of the statement and what the motive was for making the statement. Rules like Federal Rules of Evidence 801(d)(2)(A) establish a one-way street for admissibility of the defendant’s statements: The prosecution may use them because the defendant is responsible for whatever he or she says, and the defendant may not use them because they are deemed self-serving hearsay for which the prosecution is not responsible.

Yet, it is a mistake to conclude that self-serving statements by a defendant are never admissible when offered for the defense. They may be admissible when not offered for their truth—e.g., to demonstrate why a third party acted in a particular way in response to a defendant’s statement. They also may be admissible for their truth if they fall within an exception to the hearsay rule.

An Illustrative Case

In Hinck v. State, 260 So. 3d 325 (Fla. Ct. App. 2018), the defendant was convicted of attempted second-degree murder after a state trial judge excluded his self-serving statement as hearsay. The state court of appeals reversed the ruling and the conviction after finding that the statement qualified as an excited utterance. The case is a reminder that the fact that a defendant cannot offer self-serving statements generally does not mean that they are never admissible.

The Facts

The case turned on two competing versions of events, but there was a common thread. Both the alleged victim and the defendant appeared to agree that they encountered each other on a social media website, they agreed to meet for a sexual encounter, the alleged victim drove to pick up the defendant at a gas station and drove them to a restaurant, they discussed their sexual interests, and they eventually went to the alleged victim’s third-floor hotel room for the expected sexual encounter.

According to the alleged victim’s testimony, the defendant, without provocation, took out a knife shortly after entering the room, slashed the alleged victim’s throat, and stabbed the alleged victim in the torso and the back of the head. The alleged victim claimed to have knocked the knife from the defendant’s hand and to have attempted to flee the room only to have the defendant run out of the room first.

According to the defendant’s testimony, he changed his mind about a sexual encounter and only used a knife when the alleged victim used force to grope the defendant and push him onto the bed, leading the defendant to believe that he would be raped. The defendant testified that he ran from the room, took an elevator to the lobby, and in an excited state told the hotel desk clerk that he stabbed someone who tried to molest him and asked the clerk to call an ambulance and the police.

The Evidence Fight

Interestingly, the prosecution did not object to the defendant’s own testimony about what he said to the hotel desk clerk when he emerged from the elevator into the hotel lobby. But when the defendant called the clerk as a witness, the prosecution suggested that it had a hearsay objection that would better be considered outside the hearing of the jury.

The defense made the following proffer:

DEFENSE COUNSEL: [T]ell me how you came into contact with [the defendant].

HOTEL EMPLOYEE: I was at the front desk and he came from behind.

. . .

DEFENSE COUNSEL: And clothing-wise what did you notice that was odd?

HOTEL EMPLOYEE: He was bloody everywhere.

DEFENSE COUNSEL: Okay. And now the demeanor, how he was, how he was acting, can you describe that for the Court?

HOTEL EMPLOYEE: Yes. He was shaking, he was scared, he was like muttering like trying to get the words out.

. . .

DEFENSE COUNSEL: And what, what did he tell you?

HOTEL EMPLOYEE: [A]t first I was shocked, I looked and he was like: Help, I’ve been attacked, I stabbed someone . . . And then I said what? And then he was like: Yes, I’ve been attacked, help, I stabbed someone. And I said where and he said on the third floor. And, yeah, that’s what he said.

DEFENSE COUNSEL: And was his statement “I’ve been attacked; I stabbed someone” was that in response to any question that you posed to him?

HOTEL EMPLOYEE: No.

DEFENSE COUNSEL: It was just a spontaneous uttering?

HOTEL EMPLOYEE: The only question I asked him was where.

DEFENSE COUNSEL: And did this happen . . . immediately when he saw you, came up to you?

HOTEL EMPLOYEE: Yes.

At the conclusion of the proffer, the defense argued that the defendant’s statement to the clerk was admissible as an excited utterance, while the prosecution argued that defendant’s statement the defendant’s statement to the clerk was self-serving hearsay and was not an excited utterance because the clerk had no way of knowing how the defendant typically spoke. The trial judge agreed with the government and explained why:

The rule is clear in terms of hearsay. 801 suggest[s] obviously that it’s hearsay and I do find it’s hearsay. I don’t find any exceptions applicable to that particular statement. I do find that it is self-serving but more importantly it goes into exculpatory statements by a defendant. And there are a number of cases that would suggest that the statement is not admissible even if it were under an exception. . . .

And the cases that I’m relying on include Rodriguez v. State, 591 So. 2d 308 [(Fla. 3d DCA 1991)]. You got Logan v. State, 511 So. 2d 442 [(Fla. 5th DCA 1987)]. Fagan v. State, 425 So. 2d 214 [(Fla. 4th DCA 1983)]. And . . . Cotton v. State, 763 So. 2d 437 [(Fla. 4th DCA 2000)].

The defendant is trying to introduce his own statement through somebody that’s exculpatory and for the truth of the matter asserted. Under the cases I just cited including the Cotton case[,] that will not allow this Court to admit that particular statement. [The hotel employee’s] observations are one thing, what she saw is not hearsay so she can testify as to her own observation. But as far as what the defendant said it is hearsay, not within exception, exculpatory, and self-serving . . . .

Hence . . . I’m not going to allow the exculpatory statement, [the hotel employee] is not allowed to testify regarding the statement that [the defendant] made.

The Court of Appeals

The court of appeals noted that section 90.803(2) of the Florida Statutes (2017) defines the “excited utterance” exception to the hearsay rule as: “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” It further noted that the Florida Supreme Court has established a three-prong test for excited utterances:

[T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. (Hayward v. State, 24 So. 3d 17, 29 (Fla. 2009) (citations and internal quotation marks omitted)).

Finally, the court referred to its own prior discussion of excited utterances:

There is no bright line standard by which to measure the length of a permissible time gap between a [startling event] and a [declarant’s] statement for purposes of analyzing the admissibility of the statement as an excited utterance. Instead, where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. (Rivera v. State, 718 So. 2d 856, 858 (Fla. 4th DCA 1998) (citations and internal quotation marks omitted).)

Applying the law to the facts of the case, the court of appeals held that the trial judge used an incorrect legal approach to assess the defendant’s statement and relied upon previous decisions that were not relevant:

We have held, where a defendant’s statement qualifies as an excited utterance admissible under section 90.803(2), “[t]he mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence.” Stiles v. State, 672 So. 2d 850, 851–52 (Fla. 4th DCA 1996) (emphasis added; citation omitted).

Moreover, the four cases upon which the trial court relied are all distinguishable. The first three cases did not involve situations in which a defendant was seeking to admit his own statements through section 90.803(2)’s excited utterance exception. The fourth case, Cotton, was “devoid of any evidence that would qualify appellant’s statement as an excited utterance under [section] 90.803(2).” 763 So. 2d at 440.

The court of appeals concluded that under the state supreme court’s three-pronged test, there was sufficient evidence to qualify the defendant’s statement as an excited utterance:

First, the stabbing was an event startling enough to cause nervous excitement. See Harmon v. State, 854 So. 2d 697, 699 (Fla. 5th DCA 2003) (“[A] bloody fight [is] an event startling enough to cause nervous excitement.”). Second, sufficient evidence existed to show that the defendant made his statement to the hotel employee before there was time to contrive or misrepresent. It is undisputed that the amount of time between the altercation and the defendant’s statement to the hotel employee was less than one minute, during which the defendant ran down the hallway, took an elevator to the lobby, and immediately approached the hotel employee. The state presented no evidence to show that, during that time interval and under those circumstances, the defendant contrived or misrepresented his statement to the hotel employee. Further, the state presented no evidence, and the trial court articulated no evidence, that the defendant’s age or physical or mental condition, or the event’s characteristics, justified a finding that the defendant’s statement to the hotel employee was contrived or misrepresented. Although the state argued, and the trial court found, that the defendant’s statement to the hotel employee was exculpatory, i.e., self-serving, the state presented no evidence, and the trial court articulated no evidence, to justify the finding that the mere self-serving nature of the defendant’s statement automatically required excluding the hotel employee’s testimony reciting the defendant’s statement.

Third, the hotel employee described the defendant as a person still under the stress or excitement caused by the event.

Self-Serving Nature of the Statement

The state did its best on appeal to make variations on the argument that a self-serving statement should not qualify as an excited utterance. The court of appeals was not persuaded. It distinguished cases in which a defendant preplanned an event so that it was difficult to believe that the event was startling when it occurred.

An Enigma

Why did the prosecution not object to the defendant’s own testimony about his statements to the hotel clerk? The court of appeals does not discuss any possible reason. One possibility is that the prosecution thought that the jury would not believe the defendant because he was relating a self-serving statement, but it believed that the jury might be more likely to find the clerk credible.

With hindsight, it seems that either both the defendant’s and the clerk’s testimony about the defendant’s statement should have been admitted or both should have been excluded. One can only surmise that, although the only objection made by the prosecution addressed the clerk’s testimony, the court of appeals would have held that the defendant’s statement to the clerk was an excited utterance to which both witnesses were entitled to testify.

Prejudicial Effect

The prosecution argued that any error in the exclusion of the clerk’s testimony was harmless because the defendant himself was able to provide the same testimony. But the court of appeals disagreed:

Witness credibility was critical in this case because no physical evidence or eyewitness testimony corroborated the alleged victim’s version of the events. Although the defendant was permitted to testify about his alleged excited utterance to the hotel employee, the hotel employee’s proffered recitation of the defendant’s alleged excited utterance may have, in the jurors’ minds, corroborated the defendant’s testimony and supported his self-defense claim. Given that possibility, the state cannot meet its burden to establish that the error in excluding the hotel employee’s testimony was harmless.

Lesson

Although the hearsay exemption for party opponent statements (or admissions) is a one-way street, a defendant is as entitled as any other party to seek to show that his or her statements satisfy an exception to the hearsay rule and should be admitted for their truth.

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Stephen A. Saltzburg

Stephen A. Saltzburg is the Beverly Woodbury University professor at the George Washington University School of Law in Washington, DC.