Under Fed. R. Evid. 803(2), 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" is not excluded by the hearsay rule. When a statement is offered as an excited utterance, the trial court must find two conditions. First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. Under Fed. R. Evid. 104(a), the trial court makes the determination as to the existence of excitement and the applicability of this exception.
The defendant is a 27-year-old citizen of Nigeria. She entered the United States on the morning of July 6, 1985, with another Nigerian woman, Ehimwema (Clara) Onaiwu, who admitted her guilt of various drug charges. Testifying at her own trial, defendant asserted that she came to the United States solely to buy cosmetics for her store in Benin City, Nigeria. Defendant was found guilty of entering the country and conspiring to distribute heroin. At trial, testimony of a federal agent was admitted in support of the conviction. The agent arranged a drug transaction between defendant and a prospective heroin purchaser. Testimony of defendant's coconspirator, who pled guilty to charges against her, was also pivotal. After defendant was found guilty, she sought a new trial. She alleged that the agent's statement, which was recorded on tape, was improperly admitted at trial.
Was the agent's statement, which was recorded on tape, improperly admitted at trial?
The court admitted the tape-recorded statement but also cautioned the jury that the testimony was not subject to cross-examination and should be cautiously considered. The court found, however, the jury was not wrong to deem the testimony credible based upon the fact the statement was not inconsistent and was offered to rebut a charge against the witness of fabrication or improper motive. The statement was also admissible as an excited utterance and present sense impression and under the catchall hearsay exception. In addition, there were factors impeaching defendant's credibility that was properly admitted, including testimony on cross to which she opened the door.