October 2014 Excited Utterance Gregory Taylor’s ex-girlfriend, Issue: Tambra Bacon, testified that shortly Did the victim’s report to the officer after their relationship ended, she function as an excited utterance, and was driving her new boyfriend’s car thereby constituted an exception to In this issue: when she saw Taylor standing in the the hearsay rule? Yes . middle of the road. After making eye Excited Utterance: contact with Bacon, Taylor walked At trial the State argued that the Question First in front of her vehicle, yelled out statements were admissible pursuant various insults, and threatened to kill to the excited utterance exception to Then Miranda her. As Bacon sped away, she saw a the hearsay rule. The defense re- gun in Taylor’s hand and heard what sponded that the excited utterance sounded like three gunshots. She exception was inapplicable because Miranda then drove to a nearby restaurant, Officer Davila testified that Bacon where she dialed 911. However, up- had calmed down at the time of their Questions on seeing a police officer nearby, conversation. Officer Carlos Davila, she hung up An excited utterance is “a state- and told him what happened. ment or excited utterance relating to Winning Officer Davila’s testimony was a startling event or condition made generally consistent with Bacon’s. while the declarant was under the Courtroom Additionally, he testified that he ob- stress of excitement caused by the Testimony served bullet holes in the door of the event or condition.” § 90.803(2), F.S. car she was driving. Crime scene For a statement to constitute an technicians located bullets inside the excited utterance, three requirements vehicle driven by Bacon. However, must be met: (1) there must have law enforcement did not find evi- been an event startling enough to dence of spent cartridges at the sce- cause nervous excitement; (2) the ne, nor could they locate any wit- statement must have been made be- Legal Eagle nesses. The trial court allowed Of- fore the declarant had time to con- ficer Davila to relate to the jury what trive or misrepresent ; and (3) the Published by: Tambra Bacon told him about the statement must have been made Office of the State Attorney shooting. while the declarant was still under West Palm Beach, FL The defendant was convicted of a the stress of excitement caused by the 33401 firearm offense and appealed arguing event. State v. Jano , (Fla.1988). B. Krischer, Editor that the officer’s testimony was inad- The excited state can exist for a th missible hearsay. The 5 D.C.A. did substantial amount of time after the not agree. event occurs. When assessing the LLLOfficersegal Eagle should consult with their agency advisors to confirm1 the interpretation provided in this publicationOctober and to 2014 what extent it will affect their actions. Past issues of the Legal Eagle are available at //SA15.org under “Resources.” duration of the excited state, the slightly she was able to tell me [what even when she does not appear at court considers whether the declarant happened].’ As Davila spent time trial. This is called “evidence based had time for reflective thought and with Bacon, he observed her start to prosecution,” allowing the defendant the capacity for conscious misrepre- calm down. Specifically, he testified: to be prosecuted despite the victim’s sentation . ‘She wasn’t shaking as much. She absence. Obviously, this is of great “In determining whether the nec- did keep looking over her shoulder value in a domestic violence case. essary mental state exits, the length once in a while but she was able to— As always effective report writing of time between the statement and the pitch of her voice lowered so she is critical. As seen above Officer the startling event may be consid- was able to talk, you know, she had Davila’s testimony included the vic- ered. Only in exceptional cases self-control.’ Apparently, the trial tim’s physical condition (shaking, would a statement made more than court seized upon Officer Davila’s stuttering, looking over her shoulder) several hours after the event be made testimony that Bacon ‘calmed down and state of mind (nervous) at the in the stress of excitement caused by slightly,’ and concluded that her time she approached him to report the event. Other factors that the trial statements were not excited the shooting. judge can consider in determining utterances. Thus it is important that the LEO whether the necessary state of stress “Examining the evidence as a thoroughly document in the offense or excitement is present are the age whole, however, we find that this report the demeanor and emotional of the declarant, the physical and was an abuse of discretion. There condition of the victim (calm, crying, mental condition of the declarant, the was no evidence that Bacon had suf- shaking, hysterical, sweating, angry, characteristics of the event, and the ficient time for reflection, and the yelling). subject matter of the statement. If the evidence demonstrated that she was If a camera is available photo- time between the startling event and still in a state of panic as she related graph the demeanor. the statement is long enough to per- the events, which had occurred just If a digital recorder is available mit reflective thought by the declar- minutes before, to Officer Davila. tape-record the victim’s statement. ant, the burden is on the offering Although she may have calmed However, an excited utterance can- party to demonstrate that the declar- down enough to speak to Officer not be in response to investigative ant did not engage in reflective Davila, she was still shaking and questioning. thought.” C. Ehrhardt, Florida Evi- appeared excited. See, Hudson v. Assess verbal and non-verbal dence § 803.2 (2008 Edition). State , (Fla.2008) (holding that the communication of parties involved Court’s Ruling: fact that declarant’s voice did not and include in the report. The 5 th D.C.A. found that the facts sound excited was not determinative Ask the victim who she called presented at trial established the vic- of whether his statements met the immediately after the incident. This tim’s mental state caused by the requirements of section 90.803(2), witness could have important infor- stress of the shooting qualified her F.S., and noting that ‘some people mation, and can testify to the vic- statement to the officer as an excited remain calm of voice when under tim’s demeanor. The witness may utterance. “Here, Bacon testified that stress’). Under these facts, Bacon’s also be permitted to testify to the she saw Officer Davila immediately statements were excited utterances. victim’s excited utterance. after the shooting occurred and that Accordingly, we find that the admis- If the victim originally contacted she was ‘emotional, crying, upset, sion of the statements was not error. 911, acquire a copy of the taped call. [and] panicking’ when she told him AFFIRMED.” Photograph the condition of the vic- what happened. Officer Davila de- Lessons Learned: tim and the scene (clothing and ap- scribed Bacon’s demeanor consist- While the facts of this case included pearance) when relevant to corrobo- ently: ‘She was shaken up. You the victim testifying at the trial, the rate victim’s statement. know, talking really fast, stuttering. I benefit of the excited utterance ex- Taylor v. State tried to calm her down a little bit so ception to the hearsay rule is that it 5th D.C.A. (August 29, 2014) she could start telling me what’s go- permits the officer to testify to what ing on. And once she calmed down the victim told him that occurred LLLegal Eagle 2 October 2014 LLLegal Eagle 3 October 2014 Recent Case Law Talk First Then Miranda ing. She informed Wright that Hoop- interview. By the time Detective er had told her “everything,” and if Stroup read Wright her Miranda Amber Wright, and five others, was Wright continued to lie, she would rights, Wright had been at the sher- charged with the murder of Seth be treated “like a piece of garbage.” iff’s office for more than six hours. Jackson. Following up on a tip the Finally, Wright admitted her involve- Wright filed a motion to suppress her police went to the Wright house and ment in Jackson’s murder, largely as statements, arguing that they were met with Amber and her friends. described by Hooper, prompted by the product of custodial interroga- Amber and three others went to the Detective Stroup’s questions. At the tions, that she had not been Miran- station in a marked Sheriff’s Office conclusion of the second interview, dized before the first or second inter- vehicle, while Amber’s Mom fol- Detective Stroup arrested Wright for view, and that the failure to do so lowed behind in her own car. murder and handcuffed her. tainted the admissions made in the At the sheriff’s office, Wright had Shortly after the second interview third interview. While the State three videotaped interviews with ended, Detective Stroup realized that agreed to the suppression of the sec- Detective Rhonda Stroup. The first no one had Mirandized Wright. As a ond interview, it argued against sup- interview took place in a “soft result, she escorted Wright, in hand- pressing the first or third interviews. room.” Wright and her mother sat cuffs, back to the soft room for a The trial court agreed. together on a large couch, while De- third interview. At the start of the The 5 th D.C.A. disagreed. tective Stroup sat across from them third interview, Detective Stroup told Issue: in a chair.