United States v. Steven B. Sewell ( 1996 )

United States Court of Appeals
For the Eighth Circuit
___________
No. 96-1401
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri
Steven B. Sewell, *
*
Appellant. *
___________
Submitted: June 11, 1996
Filed: July 26, 1996
___________
Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and DOTY*,
District Judge.
___________
DOTY, District Judge.
*
The HONORABLE DAVID S. DOTY, United States District
Judge for the District of Minnesota, sitting by
designation.
I.
Defendant Steven Sewell ("Sewell") appeals from his conviction
under 18 U.S.C. §§ 922(g)(1) and 924(e)(1), for possessing a
firearm as a thrice-convicted felon.1 We affirm.
Sewell's conviction arises from a traffic stop made on or
about February 24, 1995. Defendant consented to a search of the
passenger compartment, which revealed a loaded ammunition clip.
Defendant claimed to have no knowledge of the origins of this clip.
When asked whether there were any weapons in the trunk of the car,
defendant denied that there were. A subsequent search revealed a
nine-millimeter semi-automatic pistol which had been placed atop a
pile of clothing in the trunk. When this fact was brought to
defendant's attention while he waited in a patrol car, he stated
that the gun belonged to his brother and he had not known it was in
his trunk.
At trial, the government brought a motion in limine to exclude
Sewell's statements as hearsay under Fed. R. Evid. 801(c) and 802.
In response, defendant argued that the statements were admissible
within the exception for "excited utterances". Fed. R. Evid.
803(2). The court orally granted the motion, stating that he
didn't believe that a person denying knowledge of a firearm, when
one is found, is an utterance that had been created by a physical
shock, stress or nervous excitement absent testimony to that
effect.
1
The Honorable Stephen N. Limbaugh, Judge, United States
District Court for the Eastern District of Missouri.
-2-
Defendant's continuing objection to the ruling was noted.
Trial Transcript at 27. Sewell testified on his own behalf, and
stated that he did not have knowledge of the origins of the
ammunition clip. However, he did not testify regarding his
contemporaneous statement that he had not known the gun was in his
car. Sewell was convicted and sentenced. He argues that his
contemporaneous statement should have been admitted as an excited
utterance, and the trial's court's refusal to do so "severely
prejudiced" him.
II.
The parties agree that this court may reverse the trial court
only upon a showing that it has abused its discretion in excluding
the testimony as hearsay. U.S. v. Martin, 59 F.3d 767, 769 (8th
Cir. 1995). No such showing has been made here.
The justification for the "excited utterance" exception, as
this Circuit has noted, derives from the teaching of experience
that the stress of nervous excitement or physical shock "stills the
reflective faculties," thus removing an impediment to truthfulness.
U.S. v. Elem, 845 F.2d 170, 174 (8th Cir. 1988) (quoting 6 Wigmore,
Evidence § 1747, at 195 (Chadbourne rev. 1976)):
Since this utterance is made under the immediate and
uncontrolled domination of the senses, and during the
brief period when considerations of self-interest could
not have been brought fully to bear by reasoned
reflection, the utterance may be taken as particularly
trustworthy (or at least lacking the usual grounds for
untrustworthiness), and thus expressing the real tenor of
-3-
the speaker's belief as to the facts just observed by
him.
Id.
Defendant's argument that he was merely reacting naturally to
the "shock" of an "extraordinarily startling event" - i.e., the
discovery of a weapon in his possession - is unconvincing. Where
incriminating evidence is discovered in one's possession, it
requires only the briefest reflection to conclude that a denial and
plea of ignorance is the best strategy. This hardly comports with
the spirit of disinterested witness which pervades the rule. There
is no evidence that the defendant's self-serving statement derived
from an uncontrolled "excitement" experienced while learning of the
evidence against him. The trial court's ruling reflects reasoned
consideration of the requirements of the rule and is correct.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS EIGHTH CIRCUIT.
-4-