Statements Made as an Excited Utterance are not Heresay and Thereby Admissible - Boston Criminal Defense Attorneys Parker Scheer

December 26, 2012
By Parker Scheer LLP on December 26, 2012 9:20 AM |

In Commonwealth v. Perez, the Massachusetts Appeals Court recently held that statements made by a woman congruent to an attack were made as an excited utterance, thereby not heresay but an exception to the hearsay rule. The trial court did not err in admitting the evidence. The defendant's appeal is denied.

Juan Perez attacked Linda Wynn, after which Wynn ran into her apartment. Perez followed Wynn and tried to enter her apartment by breaking down a door. Perez also had a BB gun. While Perez was kicking in her door, Wynn called 911 and a neighbor.

On the 911 tape, over and over Wynn told the 911 operator that Perez had just attacked her. That he had choked and punched her, and that he was now trying to break her door down to get inside her apartment. Wynn stated she was afraid Perez was going to kill her.
When Wynn talked to her neighbor, she told the neighbor that she had been choked and punched in the face. The neighbor testified that when Wynn made the statements she was "crying" and "very nervous."

Wynn was not available for trial. However, the trial judge admitted the 911 tape and allowed the neighbor to testify after determining Wynn's statements were ongoing to the initial attack and therefore an excited utterance. Perez was found guilty of assault and battery and witness intimidation, and appealed. Perez made two arguments:

1. Wynn's out-of-court statements to her neighbor were inadmissible because the statements were not testimonial per se, but were testimonial in fact. Further, Wynn was not available for cross examination. Crawford v. Washington.
2. The 911 tape was inadmissible because Wynn's statements were not spontaneous and therefore did not meet the heresay exception.
The appellate court agreed with the trial court that Wynn's statements were ongoing to the initial attack. Therefore, they were an excited utterance which is an exception to the heresay rule, and thereby admissible.

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