Chapter 12 - § 13.4 EXCEPTIONS TO HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL

• Jurisdiction: Colorado

§ 13.4 EXCEPTIONS TO HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL

Some statements are not excluded from evidence by the hearsay rule, even though the declarant is available as a witness.

Colorado & Federal

➢ Burden of Production/Persuasion. The party seeking to introduce the evidence has the burden of establishing the preliminary facts essential to satisfy a hearsay exception. Lancaster v. People, 615 P.2d 720, 723 n. 2 (Colo. 1980); United States v. Robbins, 197 F.3d 829, 838 (7th Cir. 1999).

➢ Party Opposing an Admission May Have Burden of showing lack of trustworthiness under those hearsay exceptions for which lack of trustworthiness is an issue. See, e.g., Klein v. Vanek, 86 F. Supp. 2d 812 (N.D. Ill. 2000) (applying FRE 803(8)).

➢ For Hearsay Within Hearsay to be Admitted as Evidence, a hearsay exception must apply to each hearsay declaration within the combined declaration. Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008); CRE 805; FRE 805.

The following hearsay statements are admissible:

§ 13.4.1—Present Sense Impression

Colorado

➢ Spontaneous Present Sense Impression. "A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition." CRE 803(1).

➢ Spontaneous Statement Identifying Telephone Caller's Voice falls within this exception. People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).

➢ Witness's Narrative Testimony, which failed to distinguish the declarant's later recollections of a telephone conversation from his contemporaneous descriptions of the conversation, was not admissible under this hearsay exception. People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other issues, 169 P.3d 662 (Colo. 2007).

Federal

➢ Present Sense Impression. "A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." FRE 803(1).
➢ Eyewitness's Statement as to the Speed of Plaintiff's Car Before Collision, made to patrolman investigating the accident scene, is admissible as present sense impression. Kirkendoll v. Neustrom, 379 F.2d 694, 697 (10th Cir. 1967).

§ 13.4.2—Excited Utterance

Colorado

➢ Excited Utterance. "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." CRE 803(2).

➢ A Hearsay Statement is Admissible as an Excited Utterance if its Proponent Shows (1) the occurrence or event was sufficiently startling to render inoperative the normal reflective thought processes of an observer, (2) the declarant's statement was a spontaneous reaction to the event, and (3) direct or circumstantial evidence supports an inference that the declarant had the opportunity to observe the startling event. People v. King, 121 P.3d 234, 237-38 (Colo. App. 2005).

➢ The Excited Utterance Exception Also Extends to statements made in response to questioning. People v. King, 121 P.3d 234, 238 (Colo. App. 2005).

➢ The Excited Utterance Exception Has Been Liberally Interpreted to extend to statements made following a lapse of time after the startling event itself. There is no firm time limit because the duration of stress will obviously vary with the intensity of the experience and the "emotional endowment" of the declarant. The trial court is in the best position to consider the effect of the startling event on the declarant and is therefore accorded wide discretion in determining admissibility under the excited utterance exception. People v. Compan, 100 P.3d 533 (Colo. App. 2004), aff'd, 121 P.3d 876 (Colo. 2005).

Practice Pointer
The party opposing admission of an excited utterance makes its case by showing that the declarant had regained his or her composure before making the statement.

➢ An Automobile Accident is a startling event. See Lovato v. Herrman, 685 P.2d 240 (Colo. App. 1984).
➢ An Excited Utterance Is Spontaneous rather than the product of reflective thought. Statements made under the stress of excitement are generally reliable because of a lack of time to fabricate. See W.C.L. v. People, 685 P.2d 176, 179 (Colo. 1984).

➢ Factors Determining the Spontaneous Nature of a Statement: (1) lapse of time between the startling event and out-of-court statement, (2) whether the statement was made in response to questions (including the nature or technique of the questioning), (3) whether the statement was accompanied by outward signs of excitement or emotional distress, and (4) the choice of words employed by the declarant to describe the experience. Canape v. Peterson, 878 P.2d 83 (Colo. App. 1994), aff'd, 897 P.2d 762 (Colo. 1995).

➢ Statements of Bystanders may be qualified as excited utterances. See, e.g., People v. Mares, 705 P.2d 1013, 1016 (Colo. App. 1985).

➢ Statements of Young Children are given special latitude under the excited utterance exception. See People v. Ortega, 672 P.2d 215, 218 (Colo. App. 1983); People v. Galloway, 726 P.2d 249, 252 (Colo. App. 1986); People v. Hulsing, 825 P.2d 1027, 1032 (Colo. App. 1991).

➢ Substantial Time Lapse between the startling event and the declarant's statement does not defeat spontaneity if the declarant remained under the continuing stress of the traumatic event at the time the statement was made. People v. Galloway, 726 P.2d 249, 252 (Colo. App. 1986) (one hour); People v. Clements, 732 P.2d 1245, 1249 (Colo. App. 1986) (two hours); People v. Ortega, 672 P.2d 215, 217 (Colo. App. 1983) (statements made by child the morning after a sexual assault); People v. Sandoval, 709 P.2d 90, 91 (Colo. App. 1985) (14 hours).

➢ Before the Court May Admit Excited Utterance, there must be enough direct or circumstantial evidence to allow the jury to infer that the declarant had an opportunity to observe the event that is the subject of the declarant's statement. People v. Dement, 661 P.2d 675, 678 79 (Colo. 1983).

➢ Portion of Excited Utterance Describing an Event that Occurred Before the Startling Event — Even Several Months Before — is admissible, if the prior event is relevant and would likely be evoked by the startling event. People v. Ojeda, 745 P.2d 274, 276 (Colo. App. 1987) (assault victim's statement, made in state of excitement during police questioning, described incident involving the defendant that occurred five months before the assault).

Federal

➢ Excited Utterance. "A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." FRE 803(2).

➢ Statement made in response to questioning, though not spontaneous, can still qualify as an excited utterance. United States v. Magnan, 863 F.3d 1284, 1293 (10th Cir. 2017).

➢ A Carjacking Victim's Testimony that Declarant Exclaimed, "Kenny, Don't Do It!" as carjacker placed a gun to the victim's head was held to be admissible as excited utterance. United States v. Jackson, 88 F.3d 845 (10th Cir. 1996).

§ 13.4.3—Then-Existing Mental, Emotional, or Physical Condition

Colorado

➢ Then-Existing Mental, Emotional, or Physical Condition. "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." CRE 803(3).

➢ The Common Law "State of Mind" Exception on which this rule is based requires that such declarations relate to a then-existing "state of mind" and that they must have been made under circumstances indicating sincerity. Morrison v. Bradley, 655 P.2d 385, 387 (Colo. 1982).

➢ Homicide Victim's Statements that She Feared that the Defendant Would Kill Her exceeded the scope of the "state of mind" exception since they included the victim's opinion or belief. People v. Madson, 638 P.2d 18, 30 (Colo. 1981).

➢ Victim's Expression of Fear of the Defendant is admissible when the state of mind of the victim is at issue, such as in prosecution involving claim of self-defense. People v. Gladney, 570 P.2d 231, 233 (Colo. 1977).

➢ Statement of Present Intention to Engage in Future Conduct is admissible under this exception. People v. Madson, 638 P.2d 18, 27 (Colo. 1981); Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).
➢ Declarant's Statement that He Would "Call His Connect" was admissible under the "state of mind" exception to the hearsay rule as evidence of present intention to engage in future conduct. People v. Nunez, 698 P.2d 1376, 1378 (Colo. App. 1984), aff'd, 737 P.2d 422 (Colo. 1987).

Federal

➢ Then-Existing Mental, Emotional, or Physical Condition. "A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." FRE 803(3).

➢ A Declarant's Emails Describing His Feelings ("I hate to be in this predicament"; "I am at my wits [sic] end"; "I am concerned for the future.") were admissible under the "state of mind" exception. However, his statements concerning the reasons for those feelings (e.g., conversations, interactions, incidents, and problems with the plaintiff) were inadmissible statements of memory or belief outside of the scope of the exception. McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1143-44 (10th Cir. 2006).

➢ Victim's Statement that She Was Afraid Because She Believed Her Husband Might Kill Her was admissible only as to the victim's statement that she felt afraid, but not admissible as to the basis of her fear, which was a statement of belief rather than state of mind. United States v. Joe, 8 F.3d 1488, 1493 (10th Cir. 1993).

➢ Defendant's Custodial Statement that He

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