EVIDENCE: Hearsay, Excited Utterance Exception KRE 803(2)

From Jackson v. Commonwealth, COA, Published, July 8, 2011

The “excited utterance” hearsay objection under KRE 803(2) is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or the condition.” In Noel v. Commonwealth, 76 S.W.3d 923, 926 (Ky. 2002), the Kentucky Supreme Court articulated the following analysis for the excited utterance exception:
The premise for the exception is that statements made under the stress of the excitement caused by a startling occurrence are more likely the product of that excitement and, thus, more trustworthy than statements made after the declarant has had an opportunity to reflect on events and to fabricate. Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir. 1988); Mounce v. Commonwealth, 795 S.W.2d 375, 379 (Ky. 1990); Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.60, at 454–56 (3d ed. Michie 1993). For an out-of-court statement to qualify for admission under KRE 803(2), “it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980) (gathering cases), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). We have identified the following factors as relevant to a determination of whether an out-of-court statement is admissible under KRE 803(2):
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.
Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998) (quoting the pre-code case of Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986)). We have also clarified that these factors do not pose a true- false test for admissibility but, rather, are guidelines to be considered in determining admissibility. Jarvis, supra, at 470 (citing the pre-code case of Smith v. Commonwealth, 788 S.W.2d 266, 268 (Ky. 1990), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990)). Finally, we have held that, in a close case, “the trial court's decision to admit or exclude the evidence is entitled to deference.” Souder, supra, at 733.

After careful review of the applicable caselaw above and the factors as set forth by the Commonwealth, we agree that the trial court did not abuse its discretion in admitting Officer Johnson’s testimony as admissible hearsay under KRE 803(2). S.N.’s statements were given immediately after the attack and the physical evidence supported the details she had provided to the police. Further, the statements were given in close proximity to where the attack occurred, and there was little to no time for S.N. to fabricate any story. Finally, S.N. was clearly excited and upset when she gave her statement to Officer Johnson, perhaps the most convincing argument that her statements were in fact excited utterances. Accordingly, we find no error in the trial court’s evidentiary rulings admitting Officer Johnson’s testimony about S.N.’s statement as acceptable hearsay pursuant to KRE 803(2).

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