Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person.

The accusatory statements faulted the defendant for shooting three victims minutes before the 911 call was made. “Yo, it was Twanek, man! It was Twanek, man!” was heard faintly in the background of the call. (The defendant’s first name is Twanek.) Although there were additional incriminating facts, such as the defendant’s fingerprint on the passenger door of the getaway vehicle, the Court nevertheless found the outstanding evidence lacking. Instead, the Court put more weight on the fact that the victims and bystanders of the crime did not identify the defendant in a lineup.

At the defendant’s first trial, the trial court excluded the excited utterance statements, and the trial ultimately resulted in a deadlocked jury. During the defendant’s retrial, the judge again excluded the background statements from the 911 call. However, the judge fell ill and was subsequently replaced. Despite the earlier decision, the succeeding judge  admitted the statements, and the defendant was ultimately convicted of one count of Assault 1º, two counts of Attempted Assault 1º, CPW 2º, and Assault 2º. The Court recognized the judicial authority to reject a prior court’s evidentiary decisions on retrial; and so, the Court did not preclude a successor judge from having such power within the same trial. Therefore, the Court upheld the power of a judge’s independent discretion to depart from the decisions and orders of other judges concerning the same matter.

However, the Court independently concluded that the statements should not have been admitted, finding that the excited utterance exception did not apply in this case. Because statements made under the exception must be made contemporaneously or immediately after a startling event, the analysis for applying the exception is fact-specific. Particularly, “facts must exist from which a reasonable trier of fact could infer that the declarant personally observed the incident.” Because the speaker had not been identified, the Court could not definitively place him at the scene of the crime. In fact, the Court speculated, it is possible that the declarant simply repeated what he heard from a bystander. Such a statement cannot qualify as an excited utterance, because the crux of admitting statements under the exception is supported by a bystander’s firsthand observations and shock that stems from such observations. As the Court emphasized, “To be sure, it must be inferable that the declarant had an opportunity to observe personally the event described in the [spontaneous] declaration.”

After concluding that the excited utterance exception was wrongfully applied by the lower court, the Court then found that this error was not harmless. In coming to this conclusion, the Court analyzed the non-constitutional standard: “whether proof of guilt was overwhelming, and whether there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced.” The lack of suspect identification by the victims and bystanders was weighed heavily by the Court. Furthermore, considering the deadlocked jury outcome in the defendant’s first trial and the People’s reliance on the inadmissible statements during retrial, the Court concluded that there was a significant probability that the jury would have acquitted Mr. Cummings, had the statements been denied.

Interestingly, in her concurring opinion, Judge Rivera essentially called for a complete elimination of the excited utterance exception. Her concurrence questioned the entire foundation and rationale behind the exception. Her opinion, based on advances in psychology and neuroscience, provided that people are “entirely capable of spontaneous lies in emotional circumstances.” Nevertheless, the declarant’s location at the time of the crime, which is the most important factor in analyzing the admissibility of these statements under the exception, was never corroborated. So, as the excited utterance exception still validly stands, it could not be properly applied to the background statements made by an unidentified speaker.  (AP/LC)

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