Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.
According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.
The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.
The police officers saw the defendant come out of her apartment. He was ultimately charged with residential burglary and harassment (bodily injury).
The state moved to admit the 911 call, arguing it was admissible as either an excited utterance or present sense impression exception to the hearsay rule. The state argued admitting the call would not violate the defendant’s right of confrontation because the statements in the call were non-testimonial.
The defendant argued the ex-girlfriend was not under the stress of the exciting event when the statements were made. He also argued the statements were testimonial and admission would violate his right of confrontation.
The trial court redacted part of the call, ruled the statements were not testimonial and did not violate the defendant’s right of confrontation. The court admitted the call into evidence, as well as testimony from one of the police officers that the ex-girlfriend was shaking, scared, crying, and distraught. The trial court also admitted a letter from the ex-girlfriend to the court in which she recanted the statements she made on the 911 call.
The defendant was convicted. He appealed, arguing the ex-girlfriend’s statements on the 911 call were hearsay and the excited utterance exception didn’t apply.
Excited Utterance Exception
The appeals court considered whether the excited utterance exception applied. It determined the ex-girlfriend had experienced a startling event when she woke up to the defendant climbing in her window. The appeals court also concluded the statements in the 911 call were made under the stress of excitement of the event. She went to the neighbor’s and they called 911 immediately. The defendant was outside trying to open the door during the call. She said on the 911 call the defendant wanted to hurt her. The appeals court concluded the startling event was still occurring during the 911 call and the surrounding circumstances supported a conclusion she was still under the stress of the event when she spoke to the 911 operator.
The defendant argued there was no evidence the ex-girlfriend was excited when she made the statements. He argued she was calm and did not cry or scream. She also spoke in the past tense.
The appeals court pointed out, however, that she used a hushed voice and whispered when she went to the door. She was startled when the police officers knocked. The appeals court concluded her tone and response to the knock were “consistent with someone hiding from a perceived threat.” The appeals court also stated the facts indicated she was still under the stress of excitement when she made the statements.
The police officer testified the ex-girlfriend “appeared highly distraught,” was shaking, looked scared, and was crying when he spoke to her right after the call. The appeals court noted it was reasonable to conclude she was distressed during the call when she was distressed immediately after.
The appeals court also concluded the statements related to the startling event because the ex-girlfriend told the operator what happened and provided details that were directly related.
The appeals court concluded the 911 call statements met the three conditions for the excited utterance exception. The appeals court held there was no abuse of discretion in the admission of the call into evidence as an excited utterance exception to the hearsay rule.
The defendant also argued the trial court’s admission of the 911 call violated his right to confront witnesses.
Both the Washington Constitution and the Sixth Amendment to the U.S. Constitution give criminal defendants the right to confront the witnesses against him. “Testimonial statements” may not be admitted into evidence when the defendant has not had a prior opportunity to cross-examine an unavailable declarant. The court determines if a statement is testimonial based on the primary purpose test, considering the circumstances under which the statement was made. A testimonial statement is one “made to establish past facts in order to investigate or prosecute a crime. State v. Burke. If the statement is made for another primary purpose, however, it is not testimonial.
The appeals court concluded the circumstances around the 911 call supported a conclusion the statements were made so the ex-girlfriend could receive help during an on-going emergency. She was not just providing information to help in an investigation, but was seeking help for the current situation. The defendant was trying to open the door during the call. The ex-girlfriend told the operator that the defendant said he wanted to hurt her. The appeals court concluded the purpose of the statement was to allow law enforcement to respond to the emergency that was occurring. The appeals court concluded there was no error in the trial court’s determination the ex-girlfriend’s statements were nontestimonial and that admission of the call did not violate the defendant’s confrontation right.
The appeals court affirmed the defendant’s conviction.
Call an Experienced Washington Criminal Defense Lawyer
Although the court concluded the 911 call met the excited utterance exception in this case, it is a fact-specific inquiry. If you are facing criminal charges, a skilled Washington criminal defense attorney can fight to protect your rights. Contact Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.