United States v. Orville Marrowbone
2000 U.S. App. LEXIS 8171, 211 F.3d 452, 54 Fed. R. Serv. 541 (2000)
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Rule of Law:
The excited utterance exception to the hearsay rule requires that a statement relate to a startling event and be made under the stress of excitement caused by the event, without opportunity for reflection or fabrication; however, improper admission of such hearsay can be deemed harmless error if other properly admitted, cumulative evidence exists and the error did not substantially sway the jury.
Facts:
- Orville Marrowbone had sex with L.D., a sixteen-year-old, on the Cheyenne River Indian Reservation.
- Marrowbone supplied L.D. with alcohol, causing L.D. to get drunk and pass out.
- L.D. awoke to Marrowbone engaging in anal sex with him.
- Soon after the encounter, L.D. ran home and told his mother what happened.
- Approximately two hours later, L.D.'s mother called tribal police for the second time to have L.D. arrested for unlawful intoxication.
- Officer Donel Henry Takes the Gun then arrived and arrested L.D. for unlawful intoxication, later transferring L.D. to the custody of Officer Harlen E. Gunville, Jr.
- While in the police officers’ custody, approximately three hours after the incident, L.D. made statements to both officers, alleging Marrowbone had molested him, stating he was ashamed, and describing the incident.
Procedural Posture:
- Orville Marrowbone was charged in federal district court with having sex with a person incapable of declining participation or communicating unwillingness, in violation of 18 U.S.C. §§ 1153, 2242(2)(B), 2246(2)(A).
- At trial in the district court (trial court/court of first instance), Marrowbone objected on hearsay grounds to the admission of police officers' testimony regarding L.D.'s statements.
- The district court overruled Marrowbone's hearsay objections and admitted the testimony without limiting instructions.
- Marrowbone was convicted.
- Marrowbone appealed his conviction to the United States Court of Appeals for the Eighth Circuit, renewing his hearsay objection and raising other claims, including a Batson violation.
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Issue:
Did the district court abuse its discretion by admitting a sexual assault victim's statements to police as excited utterances, and if so, was the erroneous admission of this hearsay evidence harmless error?
Opinions:
Majority - Beam, Circuit Judge
Yes, the district court abused its discretion by admitting L.D.'s statements to the police as excited utterances, but no, the erroneous admission was harmless error. The statements did not qualify as excited utterances because they were made approximately three hours after the event, and L.D. was a teenager, not a small child, possessing an acute ability to deliberate and fabricate. Furthermore, L.D. had a potential motive to fabricate because making a charge of molestation might enable him to avoid a night in jail for being intoxicated. L.D.'s actions did not demonstrate continuous excitement, as he was observed by Officer Takes the Gun to be calm when initially arrested and only began making statements when about to be placed in the patrol car. The court referenced United States v. Moses for the factors to consider in determining an excited utterance and Reed v. Thalacker to highlight the difference in propensity for fabrication between small children and teenagers. Despite this evidentiary error, its admission was harmless because the government presented similar, properly admitted hearsay evidence through L.D.'s mother and a nurse, which was cumulative. L.D.'s mother testified that L.D. said, 'I’m scared, just send me away and put that man in jail and just send me far away.' The nurse testified L.D. told her he had been drinking and awoke to Marrowbone having sex with him (admitted under Fed.R.Evid. 803(4) and not challenged on appeal). Additionally, the jury heard testimony from several officers that L.D. was crying and upset, which independently bolstered his credibility. Therefore, the improperly admitted evidence did not substantially sway the jury, aligning with precedent such as United States v. Balfany and United States v. DeAngelo on harmless error. The court also rejected Marrowbone's Batson claim, finding race-neutral reasons for the peremptory strikes.
Analysis:
This case significantly clarifies the application of the excited utterance exception, particularly for teenage declarants, by emphasizing the importance of genuine spontaneity, the temporal proximity to the startling event, and the absence of a motive or opportunity for fabrication. It reinforces that a lengthy delay and potential self-interest can negate the 'stress of excitement' necessary for the exception. Moreover, the decision provides guidance on the harmless error doctrine, indicating that cumulative improperly admitted hearsay, when offset by other credible and properly admitted evidence, will not warrant reversal. This case will guide trial courts in scrutinizing the circumstances surrounding out-of-court statements from older minors and appellate courts in evaluating the prejudicial impact of evidentiary errors.
