State v. Tlamka

Wright, Judge,

concurring.

I concur with the result, but I write separately to address my concerns about the hearsay testimony admitted under the excited utterance exception to the hearsay rule. As the majority notes, there are three basic requirements for this exception: (1) A startling event occurred, (2) the utterance relates to the event, and (3) the utterance was made while the declarant was still under the stress of the event. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990). The crucial question here is whether the witness’ statements were made while she was still under stress from the startling event. I do not believe that J.H. was still under stress such that her statements meet the requirements of the exception.

In Plant, the court noted that statements of very young children are admitted because it is unlikely that a very young child would fabricate stories of abuse. Numerous jurisdictions have relaxed the requirements that the statement be contemporaneous and spontaneous to the event. The key requirement is the lack of time for conscious reflection. “Because the stress of an assault is present for some time in children after the assault has occurred,” the spontaneity requirement has been loosened. Id. at 328-29, 461 N.W.2d at 264.

I question whether hearsay testimony in this case should be admitted as an excited utterance. In Plant, the court stated that it is not necessary to show that the declarant was visibly excited when the statement was made but that the witness’ nervous state is relevant. The evidence in this case does not support a conclusion that the victim was excited or nervous when her statements were made.

The theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity for reflection and provides utterances free of conscious reflection. In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987). To qualify as an excited utterance, J.H.’s statement to the police officer should have been shown to have been free of conscious reflection. It was not. I think the statement was, instead, the result of questions asked by the police officer with whom the child was encouraged to speak. The record does not show that the victim was still under the stress of the event. The record shows that J.H. had related her version of the incident to her parents at least once before she talked to the police officer. When she was interviewed by the officer, her parents stood in the door and she looked to them for encouragement. The officer testified that the child seemed somewhat shy, but that she behaved as a normal 4-year-old would behave and that she was “real easygoing” and seemed “real comfortable” with the officer. In my opinion, that evidence does not support the requirement that the victim be under the stress of the event.

In Plant, three judges concurred. Justice Shanahan stated, “[T]he requirements of the excited utterance exception have been so ‘relaxed’ that the requirements no longer stand up and have actually collapsed.” Plant, 236 Neb. at 342, 461 N.W.2d at 271. Justice Grant, who was joined by Chief Justice Hastings, wrote:

I concur because I believe the statements were admissible under Nebraska’s residual hearsay exceptions in Neb. Rev. Stat. §§ 27-803(22) and 27-804(2)(e) (Reissue 1989) for the reasons set out in the majority opinion. I believe, however, that for this court to hold that the child’s statements were “excited utterances” extends that doctrine to extraordinary and improper lengths.

Plant, 236 Neb. at 343, 461 N.W.2d at 272.

I agree with these concurring opinions. The excited utterance exception has been stretched too far. I believe a proper method for introduction of the statements of a very young child relating to the sexual abuse of the child is by the use of the residual exception to the hearsay rule cited above. Under that exception, the statement does not have to be made while the child is still “excited.” The use of this exception has been well documented in U.S. v. Shaw, 824 F.2d 601 (8th Cir. 1987); United States v. Dorian, 803 F.2d 1439 (8th Cir. 1986); United States v. Renville, 779 F.2d 430 (8th Cir. 1985); and United States v. Cree, 778 F.2d 474 (8th Cir. 1985). The U.S. Court of Appeals for the Eighth Circuit has recognized that while Congress intended the residual hearsay exception to be used rarely and only in exceptional circumstances, one such exceptional circumstance generally exists when a child abuse victim relates to an adult the details of the abusive events. In these cases, the adult witness’ testimony as to the child’s statements was more probative than any other evidence because the child was too frightened to testify. Here, the testimony was used as an attempt to validate what the child herself testified to at trial.

The safeguards for use of the residual exception to the hearsay rule are well defined by the requirements for its use. This is contrasted with the use of the “not so excited, not so contemporaneous, not so spontaneous utterance exception” applied in the present case. Reliability is the key to admission of hearsay. This reliability can be tested in a realistic manner by meeting the requirements for use of the residual exception to the hearsay rule rather than by trying to extend the application of the excited utterance exception to an inappropriate situation, as was done in this case.