Excited Utterance
In general
• One exception to the hearsay rule is the “excited utterance” exception contained in Evidence Rule 803(2).
Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010)
See Davis v. State, 796 N.E.2d 798, 802 (Ind. Ct. App. 2003), trans. denied(“Indiana Evidence Rule 803(2) allows the admission of excited utterances.”)
Exception to the rule against hearsay: Text
• The following are not excluded by the rule against hearsay, regardless of whether 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 that it caused.
Exception to the rule against hearsay: Interpretations of the text
• To meet the excited utterance exception, three elements must be present: (1) a “startling event or condition” has occurred; (2) the declarant made a statement while “under the stress or excitement caused by the event or condition;” and (3) the statement was “related to the event or condition.”
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(quoting Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied)
Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012)(quoting Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied)
See Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010)(citing Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003))(“In order for a hearsay statement to be admitted as an excited utterance, three elements must be present: (1) a startling event has occurred; (2) a statement was made by a declarant while under the stress of excitement caused by the event; and (3) the statement relates to the event.”)
See also Kimbrough v. State, 911 N.E.2d 621, 632 (Ind. Ct. App. 2009)(citing Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001))(“For a statement to be admitted as an excited utterance, the following elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; and 3) the statement relates to the event.”)
See also Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000)(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“For a hearsay statement to be admitted as an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event.”)
• This test is not “mechanical” and admissibility turns “on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications.”
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(quoting Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011))
Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012)(quoting Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011))
Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010)(citing Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003))(“This is not a mechanical test, and the admissibility of an allegedly excited utterance turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications.”)
Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000)(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“This is not a mechanical test. It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications.”)
See Palacios v. State, 926 N.E.2d 1026, 1031 (Ind. Ct. App. 2010)(citing Love v. State, 714 N.E.2d 698, 701 (Ind. Ct. App. 1999), reh'g denied)(“Application of this rule is not mechanical and admissibility should generally be determined on a case-by-case basis.”)
• “The heart of the inquiry is whether the declarant was incapable of thoughtful reflection.”
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(quoting Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003))
Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012)(quoting Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003))
Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010)(quoting Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003))
See Palacios v. State, 926 N.E.2d 1026, 1031 (Ind. Ct. App. 2010)(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“[T]he heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection.”)
Whether the declarant made a statement while under the stress or excitement caused by a startling event or condition: Lapse of time
• “The amount of time that has passed between the event and the statement is relevant but not dispositive.”
Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans. denied(quoting Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000))
Kimbrough v. State, 911 N.E.2d 621, 632-33 (Ind. Ct. App. 2009)(citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000))
• [T]he focus is on whether the declarant is still under the influence of the excitement engendered by the startling event.
Kimbrough v. State, 911 N.E.2d 621, 633 (Ind. Ct. App. 2009)(citing Lieberenz v. State, 717 N.E.2d 1242, 1246 (Ind. Ct. App. 1999), trans. denied)
See Palacios v. State, 926 N.E.2d 1026, 1031 (Ind. Ct. App. 2010)(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“The focus is on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event.”)
See also Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans. denied(quoting Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000))(“The issue is ‘whether the declarant was still under the stress of excitement caused by the startling event when the statement was made.’”)
• Although the amount of time that passes between the startling event and the statement is not necessarily dispositive, it is one factor to consider when determining the admissibility of statements.
Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000)
• While the time period between the startling event and a subsequent statement is one factor to be considered when determining whether a statement is an excited utterance, no precise length of time is required.
Davis v. State, 796 N.E.2d 798, 802-03 (Ind. Ct. App. 2003), trans. denied(citing Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001))
• There is no requirement that the event and the utterance be absolutely contemporaneous.
Holmes v. State, 480 N.E.2d 916, 918 (Ind. 1985)
See Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000)(citing Holmes v. State, 480 N.E.2d 916, 918 (Ind.1985))(“While the event and the utterance need not be absolutely contemporaneous, lapse of time is a factor to consider in determining admissibility.”)
• [I]f a statement is made long after a startling event, it is usually “less likely to be an excited utterance [,]”Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010), because “[a] long period of time reduces the likelihood that a statement is made without deliberate thought and under the stress of excitement of an event.” Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(alterations in the original)
See Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012)(quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010))(“The lapse of time is not dispositive, but if a statement is made long after a startling event, it is usually ‘less likely to be an excited utterance.’”)
See also State v. Chavez, 956 N.E.2d 709, 714 (Ind. Ct. App. 2011)(quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010))(“‘Although the amount of time that has passed is not dispositive, a statement that is made long after the startling event is usually less likely to be an excited utterance.’”)
• We do not apply a “rigid test of elapsed time” but our supreme court has “found the exception available one half-hour after the ‘startling event’ only under extreme and continuing stress.”
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(citing Davenport v. State, 749 N.E.2d 1144, 1149 (Ind. 2001), reh’g denied)
• At some point the passage of time becomes sufficient to overcome a claim of excited utterance due to an initial shock. The passage of time is particularly significant where there is no continuing effect comparable to the ongoing loss of blood and other physical effects from being shot as was the case in Yamobi.
Noojin v. State, 730 N.E.2d 672, 677 (Ind. 2000)
Whether the declarant made a statement while under the stress or excitement caused by a startling event or condition: Whether the statement was made in response to a question
• Whether the statement was made in response to an inquiry is also a factor for consideration.
Bryant v. State, 802 N.E.2d 486, 496 (Ind. Ct. App. 2004), trans. denied(citing Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000))
• [I]t is apparent that [the declarant’s] statement was made in response to [the witness’s] inquiry. Such a reaction increases the likelihood that the statements were not made under the stress of the startling event.
Bryant v. State, 802 N.E.2d 486, 496 (Ind. Ct. App. 2004), trans. denied
• [A]n excited utterance can be made in response to a question so long as the statement is unrehearsed and is made under the stress of excitement from the event.
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))
See Davis v. State, 796 N.E.2d 798, 802-03 (Ind. Ct. App. 2003), trans. denied(citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“When a statement is given in response to a question, the statement must be unrehearsed and made while still under the stress of the excitement from the starting event.”)
See also Williams v. State, 782 N.E.2d 1039, 1046 (Ind. Ct. App. 2003), trans. denied(quoting Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996))(“‘A declaration does not lack spontaneity simply because it was an answer to a question. Whether given in response to a question or not, the statement must be unrehearsed and made while still under the stress of excitement from the startling event.’”)
Whether the declarant made a statement while under the stress or excitement caused by a startling event or condition: Circumstantial evidence of being under the stress or excitement caused by the event or condition
• [W]e have considered if the declarant is crying, appears to be under stress, is injured, or is exhibiting other physical or psychological conditions that indicate stress.
Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012)
Requirement of personal knowledge
• [I]t is assumed, although not specifically stated in the rule, that an excited utterance must be based on the declarant's personal knowledge. Indeed, in the typical excited utterance case, the declarant reports an event that he or she observed. If a statement is instead based on conjecture, it is not admissible as an excited utterance to prove the truth of the matter reported.
Noojin v. State, 730 N.E.2d 672, 677 (Ind. 2000)
• [I]t is a matter of first impression for our court whether a 911 recording that involves statements by a caller that were relayed from a victim are admissible where the victim had personal knowledge of the underlying incident but the caller did not. . . . Here, [the declarant] did not have personal knowledge of the underlying incident [the first victim] described, but she did have personal knowledge of, and was responding to, the startling event or condition that came to her home in the middle of the night in the person of [that] bloodied [victim] screaming for help. [The declarant] heard [a second victim] moaning in pain from her injuries on [that victim’s] front porch next door. The 911 call confirms that [the declarant] was assiduous in relaying the operator's questions to [the first victim] and [that victim’s] answers in return. For all of these reasons, we conclude that the facts and circumstances before us bear sufficient indicia of reliability, the hallmark of all hearsay exceptions. We further conclude that these facts and circumstances are sufficient to meet all of the requirements of an excited utterance. Thus, we hold that [the declarant’s] statements relaying [the first victim’s] answers to the 911 operator are admissible as excited utterances.
Teague v. State, 978 N.E.2d 1183, 1188 (Ind. Ct. App. 2012)
Rationale
• The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful.
Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000)(citing Gye v. State, 441 N.E.2d 436, 437 (Ind. 1982))
Discretion of the trial court
• Determining whether a statement constitutes an excited utterance is within the trial court's discretion, and its ruling will be reversed only for an abuse of that discretion.
Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001)(citing Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000))