Excited Utterance Still Exciting: No Violation of Confrontation Clause
Pugh beat up Mrs. Pugh. She immediately called 911 while he was within eyesight. Her statements that Pugh was beating her up were an excited utterance and the jury hearing the statements was no violation of the confrontation clause.
To determine if a statement is in fact an excited utterance, the courts look to four factors:
(1) whether the speaker is speaking of events as they are actually occurring or instead describing past events; (2) whether a reasonable listener would recognize that the speaker is facing an ongoing emergency; (3) whether the questions and answers show that the statements were necessary to resolve the present emergency or instead to learn what had happened in the past; and (4) the level of formality of the interrogation.
The court went on to explain that the statement to the 911 operator was an excited utterance:
Here, read out of context, some of Bridgette Pugh's statements appear to describe past events. For example, she said that "[m]y husband was beating me up really bad." She also said that he was walking toward the street and that she could not see him, indicating that she was no longer threatened by him. On the other hand, many of her statements during the call show that her overriding purpose in calling 911 was to obtain police assistance to ensure her safety and medical assistance for her injuries. Although she could not see Mr. Pugh, she expressed concerns about being beaten again if she went outside. She obviously thought he was still close by and remained a danger, and in fact he was arrested outside the apartment in the parking lot just as Officer Meissner was leaving the building.
A number of the 911 operator's questions and Mrs. Pugh's responses also indicate that responses were sought to resolve a present emergency, including questions about whether Pugh was armed, whether he had been drinking, and questions about his identity. The Court in Davis indicated that statements might be nontestimonial if police interrogation, objectively viewed, was an effort to establish an assailant's identity so that dispatched officers might know whether they would be encountering a violent felon. That appears to be the case here.
The court then continues into an interesting discussion on the development of the excited utterance hearsay exception, its applicability given the confrontation clause, and the development of the hearsay rule as arising from res gestae (and its pre-constitutional development). Its an interesting read if you're a legal history buff.