State v. Hobby

Hannon, Judge,

dissenting.

I must respectfully dissent, because I do not think Harlan’s testimony relating the statements made to him by J.M. and D.M. qualifies as an exception to the hearsay rule, as an excited utterance under § 27-803(1). The victims’ age, the absence of significant force by Hobby toward them, and the time that elapsed between the alleged crime and Harlan’s interview of the victims are considerations which make an excited utterance improbable. Under such circumstances, Harlan’s testimony that one of the victims appeared to be fairly upset and the other excited is not sufficient in my opinion to show the statements were made under the stress of the alleged crime. Most importantly, the victims’ statements to Harlan were made in answer to questions he put to them in an interview after they were in the company of the neighbor and after both victims had had time to reflect. Such statements cannot be said to be spontaneous as required by the authority quoted in the majority’s opinion.