Exited Utterances and Rape

"Excited utterances" are usually hotly contested exceptions to the normal hearsay rules.  What follows is a noncomprehensive survey of recent Maine excited utterance cases in the context of sex crime cases.

• State v. Watts, 2007 ME 153 (upholding conviction)
  • The State acknowledges that the victim’s statement, “Watts just raped
    me,” repeated by her sister on the witness stand, was hearsay. It argues that the
    statement was nonetheless admissible as substantive evidence against Watts
    because it qualified as an excited utterance, which is an exception to the hearsay
    rule.
  • [¶5] A court may admit a hearsay statement as an excited utterance if it
    finds that: (1) a startling event occurred; (2) the hearsay statement related to the
    startling event; and (3) the hearsay statement was made while the declarant was
    under the stress of excitement caused by that event. State v. Robinson, 2001 ME
    83, ¶ 10, 773 A.2d 445, 448. These findings are preliminary questions for the trial
    court pursuant to M.R. Evid. 104. It is within the discretion of the court to admit
    such statements in evidence and the court’s decision will be upheld unless clearly
    erroneous. Id.
    [¶6] Watts argues that the Superior Court clearly erred in its implicit finding
    on the third factor, asserting that there was no competent evidence to support a
    conclusion that the victim was still under the stress of the sexual assault when she
    told her sister, “Watts just raped me.” There is no “bright line” time limit to use in
    deciding when the stress of excitement caused by a startling event has dissipated.
    2 M.R. Evid. 802 provides that: “Hearsay is not admissible except as provided by law or by these rules.”  M.R. Evid. 803(2) sets out one of the exceptions to the hearsay rule:
    The following [is] not excluded by the hearsay rule, even though the declarant is
    available as a witness: (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.State v. Robinson, 2001 ME 83, ¶ 12, 773 A.2d at 449. A court must consider a variety of factors, including: the nature of the startling or stressful event, the amount of time that passed between the startling event and the statement, the declarant’s opportunity or capacity for reflection or fabrication during that time,
    the nature of the statement itself, and the declarant’s physical and
    emotional condition at the time of the statement. (some citations ommitted)
  • State v. Ahmed, 2006 ME 133
    •    [¶12] The parties agreed that the victim's statements to the 911 operator were admissible, but only for the purpose of evaluating the credibility of the victim's statements at trial that were inconsistent with what she had stated to the 911 operator. Accordingly, those statements were not utilized as substantive evidence to support the conviction.(fn1) The court indicated that to support the conviction, it relied primarily on the testimony of the police officer regarding the statements that the victim had made after she arrived on the scene on September 23, 2005. The court admitted these statements as excited utterances pursuant to M.R. Evid. 803(2), the rule that permits such statements to be used as substantive evidence to support a conviction.

            [¶13] Because the officer's testimony was not objected to at trial, our review is limited to whether the court's admission of the statements constituted obvious error. See State v. Barnes, 2004 ME 105, ¶ 5, 854 A.2d 208, 209-10; State v. Knox, 2003 ME 39, ¶ 5, 819 A.2d 1011, 1013. "An error is obvious if it worked a substantial injustice or affected the defendant's substantial rights." Barnes, 2004 ME 105, ¶ 5, 854 A.2d at 210.

            [¶14] Pursuant to M.R. Evid. 803(2), an excited utterance is (1) a statement relating to a startling event or condition; (2) made while the declarant was under the stress of excitement; (3) caused by the event or condition. A variety of factors may determine whether a statement constitutes an "excited utterance." These include:

      the nature of the startling or stressful event, the amount of time that passed between the startling event and the statement, the declarant's opportunity or capacity for reflection or fabrication during that time, the nature of the statement itself, and the declarant's physical and emotional condition at the time of the statement.

            State v. Robinson, 2001 ME 83, ¶ 12, 773 A.2d 445, 449 (footnotes omitted). In Robinson, we held that "three to twelve minutes" was not too much time for a victim of domestic violence to have remained under the stress of the defendant's attack. Id. ¶ 14, 773 A.2d at 450; see also State v. Barnes, 2004 ME 38, ¶ 4 & n. 3, 845 A.2d 575, 577, reconsideration denied, 2004 ME 105, 854 A.2d 208 (holding stress sufficient to qualify statements as excited utterances where victim of assault took five to ten minutes to drive to police station after the event to report the assault).

            [¶15] Ahmed asserts that the victim's statements did not occur while she was still under the "stress of excitement." The record indicates that the victim made the 911 call at 7:47 A.M., the officer arrived at 7:52 A.M., and they spoke in the kitchen one or two minutes later. The record also shows that when the officer arrived, the victim was lying on the floor and crying "hysterically," and when they spoke in the kitchen, she was still crying. To support its reliance on the statements pursuant to M.R. Evid. 803(2), the court could have found that after seven minutes, and while still crying, the victim remained under the stress of the assault, and was not fabricating details, such as the specific place on her arm where she claimed Ahmed grabbed her. It was not error, let alone obvious error, for the court to admit the police officer's testimony regarding the victim's statements as an excited utterance.(fn2)