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The Excited Utterance Exception To The Hearsay Rule: The Gun Whisperer


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U.S v. Zuniga

United States Court of Appeals for the Seventh Circuit

2014 WL 4454984

Decided on: September 11, 2014

Statements Made Without Deliberative Thought

U.S.S.G Previous Convictions Are Sentencing Factors Not Necessary To Be Submitted To The Jury And May Be Determined By A Judge

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney

Issue: Whether statements whispered by a witness to his girlfriend that Defendant possessed a gun and was holding it to another person’s head could qualify as excited utterance and whether the District Court abused it’s discretion when it determined that Defendant’s prior convictions were sentencing factors rather than elements that must be submitted to a jury.

Summary: Defendant was arrested for pointing a gun at his ex-girlfriend. At trial, the Government introduced a witness’s testimony under the excited utterance exception to the hearsay rule. The witness testified that the Defendant pointed a gun at his ex-girlfriend and he was scared and concerned that something was about to happen to her. He then whispered to his friend that Defendant possessed a gun and they called the Police. Second, whether the trial court erred when it found that prior convictions were sentencing factors, which enhanced Defendant’s mandatory minimum sentence rather then elements of the crime to be submitted to the jury.

On Appeal, Defendant argues 1) that the District Court improperly admitted the witness’s testimony under the excited utterance exception; and 2) that the District Court abused its discretion when a Judge determined that his three prior felony predicates to make him eligible for the enhanced mandatory minimum penalty, as opposed to elements of a crime that must be submitted to a jury.

See Also: Federal Sentencing Guidelines Applying The Correct Legal Standard Under U.S.S.G § 2K2.1

Holding: The Seventh Circuit Court of Appeals held that the witness’s statements were properly admitted under the excited utterance exception.

Federal Rules of Evidence under Rule 803(2) states, hearsay is admissible as an excited utterance if the statement made was related to a startling event and made while the declarant was under the stress of the excitement that caused the statement to be uttered. For an out of court statement to qualify under the excited utterance exception: 1) a startling event must have occurred; 2) the declarant must make the statement under the stress of the excitement caused by the startling event; and 3) the declarant’s statement relates to the startling event.

Seventh Circuit held that the District Court did not abuse it’s discretion when it determined that that Defendant’s prior convictions were not facts that must be submitted to a jury, but rather sentencing factors that may be determined by a Judge.

Facts: Defendant was arrested for pointing a gun at his ex-girlfriend outside a bar and was charged with being a felon in possession of a firearm and possessing cocaine. At trial, the Government introduced a witness’s testimony under the excited utterance exception to the hearsay rule. The witness testified that the Defendant pointed a gun at his ex-girlfriend and he was scared and concerned that something was about to happen to her. He then whispered to his friend that Defendant possessed a gun and they called the Police. Defendant appealed to the Seventh Circuit Court of Appeals. On Appeal, Defendant argues that the witness was neither startled nor excited when he witnessed him hold a gun to his ex-girlfriend. The Defendant contends that a whisper, as opposed to blurting out, does not qualify the witness as being excited. The Court found that the statement was properly admitted under the excited utterance exception, and a declarant whisper, as opposed to yelling, does not necessarily mean that the statement cannot qualify as an excited utterance.

Second, the District Court found Defendant’s prior convictions as sentencing factors and submitted them to the Judge who enhanced Defendant’s mandatory minimum sentence. Defendant argues that a remand is warranted because the District Court submitted his prior felony predicates to be determined by a Judge rather than submitted to a jury to be proven beyond a reasonable doubt. The Court of Appeals affirmed the District Court’s judgment relying on Almendarez-Torres, which held that prior convictions are not factors that must be submitted to a jury, but rather may be found by Judges.

Legal Analysis: The Seventh Circuit Court of Appeals held that they review a District Court’s evidentiary rulings for abuse of discretion, United States v. Simon, 727 F.3d 682, 696 7th Cir.2013, and it will not be reversed unless the record contains no evidence on which the trial Judge rationally could have based his decision, United States v. Conley, 291 F.3d 464, 472 7th Cir.2002.

Defendant argues that the District Court improperly admitted the witness’s statement under the excited utterance exception because the witness whispered to his girlfriend that Defendant had a gun, as opposed to blurting it out as evidence that the witness was not excited. The Court of Appeals held that a declarant whispering, as opposed to yelling, does not necessarily mean that the statement cannot qualify as an excited utterance. Rather, the witness’s reasoning was curious because in almost every imaginable scenario, seeing a person pointing a gun at the head of another is a startling situation.

When asked on direct-examination why he did not confront Defendant directly, he stated that the situation was ‘heated’ and he did not want ‘it to come his way.’ The witness also said that he did not want to create panic, which the Court held is bound to happen when people hear that someone is pointing a gun at another person. Based on that evidence, the Seventh Circuit had no trouble finding that the witness saw a startling event and the volume at which he uttered, makes little difference in this case.

Defendant than argues that even if the witness was startled, he did not make his statement while under the stress or excitement of an event. Defendant asserts that, because the witness thought about how he was going to avoid a dangerous situation, he could not have been under the stress of seeing Defendant holding a gun. The Seventh Circuit held, a District Court need not find that the declarant was completely incapable of deliberative thought at the time he uttered the declaration it order for it to be admissible under the excited utterance exception to the hearsay rule. All that exception requires is that the statement is made contemporaneously with the excitement resulting from the event, Martinez v. McCaughtry, 951 F.2d 130, 135 7th Cir. 1991.

In sum, the Seventh Circuit Court of Appeals held that even if the witness’s statement was inadmissible evidence because it did not fit under the excited utterance exception, the error was harmless because admission of hearsay testimony does not constitute reversible error if the Court of Appeals determined that the error had no substantial influence on the verdict, United States v. Dominguez, 992 F.2d 678, 681 7th Cir.1993, quoting United States v. Cherry, 938 F.3d 748, 757 7th Cir.1991. With the removal of the witness’s statement, sufficient evidence remains for a rational jury to conclude beyond a reasonable doubt that Defendant possessed a gun.

Defendant next argues that the District Court abused its discretion when it found his prior convictions as sentencing factors and remand is warranted because the District Court violated Alleyne v. United States, U.S. 133 S.Ct. 2151, 186 L.Ed.2d 314 2013, when it, opposed to a jury, found that he had three qualifying felony predicates to make him eligible for the enhanced mandatory minimum penalty.

The Seventh Circuit held that according to Alleyne, any fact that increases the mandatory minimum sentence for a crime is an element of that crime, not a sentencing factor, and must be submitted to the jury.

The Seventh Circuit Court of Appeals held that they review de novo the question of whether a sentencing court erred in sentencing a Defendant under the Armed Career Criminal Act (ACCA), United States v. Foster, 652 F.3d 776, 692 7th Cir.2011. The Court held that the Defendant’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 246, 118 S.Ct. 1219, 140 L.Ed2d 350 1998, which held that prior convictions are sentencing factors that could be determined by a Judge, and did not need to be alleged in the indictment or proven to a jury. The Court concluded that, because the parties in Alleyne did not contest the vitality of Almendarez-Torres, and because the Court did not rule on the matter, Almendarez-Torres is still good law. Therefore, under the narrow exception created by the Court in Almendarez-Torres, prior convictions are not facts that must be submitted to a jury, but rather may be found by Judges. United States v. Johnson, 743 F.3d 1110, 1111 7th Cir.2014.

Accordingly, the Seventh Circuit Court of Appeals affirmed the District Court’s findings.


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