United States v. Akins ( 1998 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUL 8 1998
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                     No. 97-3353
    (D.C. No. 97-CR-40010)
    JUDE T. AKINS,                                     (District of Kansas)
    Defendant-Appellant.
    ORDER AND JUDGMENT            *
    Before EBEL , HENRY , and BRISCOE , Circuit Judges.
    INTRODUCTION
    In February 1997, a grand jury entered a one-count indictment charging
    Jude T. Akins, a convicted felon, with violating 18 U.S.C. § 922(g) by possessing
    a firearm. At trial, over Mr. Akins’s objection, the district court admitted
    testimony from two police officers and from Ms. Lissie Purenell that on
    December 29, 1996, Evelyn Culpepper and her children told them that Mr. Akins
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    had threatened Ms. Culpepper with a pair of guns earlier that night. The jury
    subsequently found Mr. Akins guilty as charged. Mr. Akins now appeals that
    conviction, arguing that the district court erred by admitting the testimony of the
    police officers and Ms. Purenell. Because the district court did not abuse its
    discretion when it admitted this testimony, we affirm Mr. Akins’s conviction.
    DISCUSSION
    “Evidentiary decisions rest within the sound discretion of the trial court,
    and we review those decisions only for an abuse of discretion.”      United States v.
    Tome , 
    61 F.3d 1446
    , 1449 (10th Cir. 1995). Moreover, “[o]ur review is
    especially deferential when the challenged ruling concerns the admissibility of
    evidence that is allegedly hearsay.”      
    Id. The district
    court admitted each of the challenged statements under Fed. R.
    Ev. 803(2), the excited utterance exception to the hearsay rule. Rule 803(2)
    allows admission of “[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.” Thus, a statement is admissible as an excited utterance when:
    (1)    a startling event occurs;
    (2)    the declarant makes a statement while under the stress and
    excitement caused by the event; and
    (3)    the statement relates to the startling event.
    See 
    id. ; United
    States v. Zizzo , 
    120 F.3d 1338
    , 1355 (7th Cir.),   cert. denied , 118
    
    2 S. Ct. 566
    (1997) ; see also Cole v. Tansy , 
    926 F.2d 955
    , 958 (10th Cir. 1991)
    (utilizing the same three-pronged test to determine whether statement constituted
    an excited utterance under New Mexico rules of evidence). Thus, we must
    examine whether the statements of Ms. Culpepper and her children pass muster
    under Rule 803(2).
    I.       A Startling Event Occurred
    Ms. Purenell testified that on the night of December 29, 1996, she
    witnessed Mr. Akins choking Ms. Culpepper. Aplt’s App. vol. II, at 37-38, 44,
    51. This attack certainly qualifies as a startling event with respect to Ms.
    Culpepper. However, because Ms. Purenell’s testimony is equivocal as to
    whether Ms. Culpepper’s children witnessed this attack,     see 
    id. at 38,
    we must
    look elsewhere to see if the children experienced any other startling event that
    night.
    However, we need not look far to find such an event. At trial, Sergeant
    Craig Fox testified that when he arrived at Ms. Purenell’s home (the scene of the
    altercation between Mr. Akins and Ms. Culpepper), Ms. Culpepper’s oldest child
    told him that Mr. Akins had been carrying a pair of guns and had threatened to
    shoot Ms. Culpepper.     See 
    id. at 95.
    Ms. Purenell also testified that at least two
    of Ms. Culpepper’s other three children made similar statements to the police.
    See 
    id. at 45.
    And we have no doubt that a child who has witnessed someone
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    threatening to shoot his mother has experienced a startling event.
    Mr. Akins contends that we cannot rely on the children’s statements to
    establish that a startling event occurred because there is nothing to corroborate
    the children’s version of the events. However, Mr. Akins ignores the fact that
    the children’s statements were, in fact, corroborated by the police’s subsequent
    discovery of a pair of guns in a nearby tree.       See 
    id. at 68-72.
    Moreover, their
    version of events is further supported by Ms. Purenell’s testimony that she
    witnessed a violent confrontation between Mr. Akins and Ms. Culpepper and by
    Sergeant Fox’s testimony that the children appeared to be frightened when he
    arrived on the scene. Thus, we need not reach the question of whether
    uncorroborated statements, without more, may prove the occurrence of a startling
    event for Rule 803(2) purposes.
    II.    The Declarants Were Under The Stress Of A Startling Event When
    They Made Their Statements
    Mr. Akins next argues that neither Ms. Culpepper nor her children made
    their declarations while they were “under the stress of excitement caused by the
    event.” Fed. R. Evid. 803(2). In particular, he suggests that too much time
    passed between the confrontation and the declarations for those declarations to
    qualify as excited utterances under Rule 803(2).
    As a threshold matter, we note that the government introduced ample
    evidence to support the district court’s conclusion that at the time Ms. Culpepper
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    and her children made their statements, they were still under the stress of the
    excitement caused by confrontation between Mr. Akins and Ms. Culpepper. For
    instance, Sergeant Fox testified that at the time Ms. Culpepper spoke with him,
    “[s]he was very visibly shaken, she was trembling, almost crying as she spoke to
    me, [and] had a look and a sound of fear in her voice.” Aplt’s App. vol. II, at 92;
    see also 
    id. at 43
    (“[s]he was scared”), 60 (“she appeared to be nervous and
    scared”), 101 ([s]he was still shaken up”). Similarly, both Sergeant Fox and Ms.
    Culpepper testified that at the time the Culpepper children made their statements,
    they appeared to be “scared.”      See 
    id. at 40-43,
    94; see also 
    id. at 61,
    63
    (describing children’s demeanor as “excited”). Mr. Akins offered no evidence to
    contradict any of this testimony.
    It is not clear how much time passed between the confrontation and when
    Ms. Culpepper and her children made their statements. However, the record does
    establish that both Ms. Culpepper and her children made their statements after the
    police had arrived on the scene.     See, e.g. , 
    id. at 45,
    63-64, 93. Officer Howard
    Montalvo, the only police officer who testified regarding this issue, stated that he
    arrived approximately fifteen to twenty minutes after he received the call from
    the dispatcher.   
    Id. at 58.
    And by the time Officer Montalvo arrived, several
    other police officers, including Sergeant Fox (the only other officer who testified
    at trial regarding the statements of Ms. Culpepper and her children) were already
    5
    on the scene. 
    Id. Thus, even
    were we to assume that: (1) several minutes passed
    between the time Ms. Purenell summoned the police and the time the dispatcher
    called Officer Montalvo; (2) a full twenty minutes passed between the call and
    the time that Officer Montalvo arrived; and (3) Ms. Culpepper and her children
    did not make their statements to Officer Montalvo and Sergeant Fox until several
    minutes after Officer Montalvo’s arrival, this would mean that less than an hour
    elapsed between the confrontation and the time that Ms. Culpepper and her
    children made their statements.
    We have previously stated that “lapse of time does not necessarily negative
    the existence of an excited state.”   Garcia v. Watkins , 
    604 F.2d 1297
    , 1300 (10th
    Cir. 1979). Thus, we have held that so long as the evidence demonstrated that a
    declarant made an out-of-court statement while still under the stress of a startling
    event, that statement was admissible as an excited utterance notwithstanding the
    fact that the declarant made the statement nine hours,   see United States v.
    Rosetta , 
    1997 WL 651027
    , at **2 (10th Cir. Oct. 20, 1997), or even a full day,
    see United States v. Farley , 
    992 F.2d 1122
    , 1126 (10th Cir. 1993), after the
    startling event. Consequently, the fact that an hour may have elapsed between
    the confrontation and the time that Ms. Culpepper and her children made their
    statements will not remove those statements from purview of Rule 803(2), since
    the unrefuted evidence demonstrates that Ms. Culpepper and her children were
    6
    still experiencing the stress and excitement caused by the confrontation at the
    time they made their statements.
    III.   The Declarations Related To A Startling Event
    The final requirement for admission under Rule 803(2) is that the out-of-
    court statement must “relat[e] to a startling event.” Fed. R. Evid. 803(2). The
    statements of Ms. Culpepper and her children easily clear this hurdle, as all of
    those statements related to the confrontation between Mr. Akins and Ms.
    Culpepper. See Aplt’s Brief at 7-8.
    Mr. Akins also offers a last, novel argument: that the district court should
    have excluded the testimony of Ms. Purenell and the two police officers because
    at trial these witnesses did not directly quote Ms. Culpepper and her children but,
    rather, only paraphrased their statements. However, Rule 803(2) does not require
    witnesses to have photographic memories. Thus, we will not exclude the
    testimony of Ms. Purenell and the police two officers merely because these
    witnesses did not quote Ms. Culpepper and her children verbatim.
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    CONCLUSION
    In sum, the district court did not abuse its discretion when it admitted the
    testimony of Ms. Purenell, Sergeant Fox, and Officer Montalvo regarding the
    out-of-court statements of Ms. Culpepper and her children. And although neither
    Ms. Culpepper nor her children were available to testify at trial, because the
    district court acted within its discretion in admitting the testimony regarding their
    out-of-court statements, the admission of this testimony did not run afoul of
    either the Fifth or Sixth Amendment.   See, e.g. , Haskell v. United States Dep’t of
    Agric. , 
    930 F.2d 816
    , 820 (10th Cir. 1991) (holding that the district court did not
    violate a party’s due process or confrontation rights when it admitted business
    records that were co-authored by an individual who was unavailable to testify at
    trial). Accordingly, we hereby AFFIRM the judgment of the district court.
    Entered for the Court,
    Robert H. Henry
    Circuit Judge
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