excited utterance exception in Massachusetts

2016In finding that the foundational requirements were met and in admitting the victim’s initial statements to Officer Hannah, the trial judge implicitly accepted the motion judge’s finding that those statements were not testimonial, and did not conduct an independent confrontation clause analysis. 4 Factors of importance to the analysis include “the degree of excitement displayed by the person making the statement ]; whether the statement is made at the place where the traumatic event occurred or at another place; the temporal closeness of the statement to the act it explains; and the degree of s

2002Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973), quoting J.

2025The excited utterance exception to the rule against hearsay makes admissible hearsay statements in which the declarant did not have the time or forethought "to contrive or fabricate the remark." Commonwealth v. Baldwin, 476 Mass. 1041 , 1042 (2017), quoting Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990).

1999Statements made up to several minutes after a shocking event took place may fall within the excited utterance exception, as long as the “statements were made under the influence of an exciting event and before the declarants had had time to contrive or fabricate the remarks.” Commonwealth v. Cohen, 412 Mass. 375, 392 (1992), citing Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990).

2018See Commonwealth v. Whelton , 428 Mass. 24 , 27 (1998).

2000The argument fails because in Commonwealth v. Whelton, 428 Mass. 24, 28-29 (1998), the court held that the excited utterance exception does not require that the declarant be unavailable to testify before an excited utterance is admitted at trial.

2025The defendant's argument rests, in large part, on the assertion that the 911 call was not made as a spontaneous reaction to the first shooting, where the call occurred an hour later.[16] Our case law has recognized that there is no "definite and fixed time limit on the excited utterance exception" -- rather, we look to whether the declarant is "still sufficiently agitated or 'under the influence of the exciting event' at the time the statement was made." See Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008), quoting Commonwealth v. King, 436 Mass. 252, 254 (2002).

2018However, "our courts have not set a definite and fixed time limit on the excited utterance exception to the hearsay rule, but instead have held that a victim need only be still sufficiently agitated or 'under the influence of the exciting event' at the time the statement was made." Commonwealth v. Wilcox , 72 Mass. App. Ct. 344 , 351, 891 N.E.2d 708 (2008), quoting Commonwealth v. King , 436 Mass. 252 , 254, 763 N.E.2d 1071 (2002) (statement by declarant to emergency room doctor who treated her, made one hour after assault, qualified as excited utterance.

2025An excited utterance is admissible if "(1) there is an occurrence or event 'sufficiently startling to render inoperative the normal reflective thought processes of the observer,' and (2) if the declarant's statement was 'a 3 spontaneous reaction to the occurrence or event and not the result of reflective thought.'" Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at 204 (5th ed. 1999).

2020In a criminal case, to be admissible as a spontaneous utterance, the out-of-court statement made by a declarant who does not testify at trial must satisfy the confrontation clause and must be admissible pursuant to the rules of evidence.8 See Commonwealth v. Beatrice, 460 7 The defendant does not argue that the excited utterance exception be abandoned, "just that its application comport with due process." 8 "A statement qualifies as a spontaneous utterance if 'there is an occurrence or event "sufficiently startling to render inoperative the normal reflective thought processes of the observer"'

2018See Rocco v. Boston-Leader, Inc. , 340 Mass. 195 , 196-197, 163 N.E.2d 157 (1960) ; Mass. G.

2018See Rocco v. Boston-Leader, Inc. , 340 Mass. 195 , 196-197, 163 N.E.2d 157 (1960) ; Mass. G.

2002A witness’s out-of-court statements are admissible if the “utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.” Commonwealth v. Brown, 413 Mass. 693, 695 (1992) (internal quotation omitted).

1999Under this exception, a statement made after an “exciting cause” is admissible “if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.” Commonwealth v. Brown, 413 Mass. 693, 695 (1992), quoting Blake v. Springfield St.

2025The defendant's argument rests, in large part, on the assertion that the 911 call was not made as a spontaneous reaction to the first shooting, where the call occurred an hour later.[16] Our case law has recognized that there is no "definite and fixed time limit on the excited utterance exception" -- rather, we look to whether the declarant is "still sufficiently agitated or 'under the influence of the exciting event' at the time the statement was made." See Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008), quoting Commonwealth v. King, 436 Mass. 252, 254 (2002).

2018However, "our courts have not set a definite and fixed time limit on the excited utterance exception to the hearsay rule, but instead have held that a victim need only be still sufficiently agitated or 'under the influence of the exciting event' at the time the statement was made." Commonwealth v. Wilcox , 72 Mass. App. Ct. 344 , 351, 891 N.E.2d 708 (2008), quoting Commonwealth v. King , 436 Mass. 252 , 254, 763 N.E.2d 1071 (2002) (statement by declarant to emergency room doctor who treated her, made one hour after assault, qualified as excited utterance.

2018See Commonwealth v. Marshall , 434 Mass. 358 , 364, 749 N.E.2d 147 (2001) (declarant's statement made while she was "crying and nervous" and "in fear" qualified as excited utterance even though made two hours after defendant threatened her with knife); Grant , 418 Mass. at 81 -82 , 634 N.E.2d 565 (one-hour interval between murder and declarant's statement, made while she was "hysterical," provided support for admission as excited utterance). 8 For the first time on appeal, the defendant also challenges trial testimony by Officer Barnes that he recognized the voice on the recording of the 911 c

2018See Commonwealth v. Marshall , 434 Mass. 358 , 364, 749 N.E.2d 147 (2001) (declarant's statement made while she was "crying and nervous" and "in fear" qualified as excited utterance even though made two hours after defendant threatened her with knife); Grant , 418 Mass. at 81 -82 , 634 N.E.2d 565 (one-hour interval between murder and declarant's statement, made while she was "hysterical," provided support for admission as excited utterance). 8 For the first time on appeal, the defendant also challenges trial testimony by Officer Barnes that he recognized the voice on the recording of the 911 c

2023See Commonwealth v. Baldwin, 476 Mass. 1041 , 1042 (2017), quoting Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015) ("A statement meets the test for admissibility as an excited utterance if '[1] there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and [2] if the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought'" [quotations omitted]).

2018See Commonwealth v. Marshall , 434 Mass. 358 , 364, 749 N.E.2d 147 (2001) (declarant's statement made while she was "crying and nervous" and "in fear" qualified as excited utterance even though made two hours after defendant threatened her with knife); Grant , 418 Mass. at 81 -82 , 634 N.E.2d 565 (one-hour interval between murder and declarant's statement, made while she was "hysterical," provided support for admission as excited utterance). 8 For the first time on appeal, the defendant also challenges trial testimony by Officer Barnes that he recognized the voice on the recording of the 911 c

2018See Commonwealth v. Marshall , 434 Mass. 358 , 364, 749 N.E.2d 147 (2001) (declarant's statement made while she was "crying and nervous" and "in fear" qualified as excited utterance even though made two hours after defendant threatened her with knife); Grant , 418 Mass. at 81 -82 , 634 N.E.2d 565 (one-hour interval between murder and declarant's statement, made while she was "hysterical," provided support for admission as excited utterance). 8 For the first time on appeal, the defendant also challenges trial testimony by Officer Barnes that he recognized the voice on the recording of the 911 c

2018See DeOliveira , 447 Mass. at 57 -58 , 849 N.E.2d 218 . 7 Certainly, there is a strong case for concluding that an out-of-court statement qualifies as an excited utterance when the facts indicate that the declarant made the statement while the crime was ongoing, see, e.g., Commonwealth v. Mulgrave , 472 Mass. 170 , 176-177, 33 N.E.3d 440 (2015) (victim's text message that her husband was present and threatening to kill her); Commonwealth v. Galicia , 447 Mass. 737 , 745, 857 N.E.2d 463 (2006) (declarant telephoned 911 and stated, "My husband is beating me up right now"), or immediately after b

2018See DeOliveira , 447 Mass. at 57 -58 , 849 N.E.2d 218 . 7 Certainly, there is a strong case for concluding that an out-of-court statement qualifies as an excited utterance when the facts indicate that the declarant made the statement while the crime was ongoing, see, e.g., Commonwealth v. Mulgrave , 472 Mass. 170 , 176-177, 33 N.E.3d 440 (2015) (victim's text message that her husband was present and threatening to kill her); Commonwealth v. Galicia , 447 Mass. 737 , 745, 857 N.E.2d 463 (2006) (declarant telephoned 911 and stated, "My husband is beating me up right now"), or immediately after b

2018See DeOliveira , 447 Mass. at 57 -58 , 849 N.E.2d 218 . 7 Certainly, there is a strong case for concluding that an out-of-court statement qualifies as an excited utterance when the facts indicate that the declarant made the statement while the crime was ongoing, see, e.g., Commonwealth v. Mulgrave , 472 Mass. 170 , 176-177, 33 N.E.3d 440 (2015) (victim's text message that her husband was present and threatening to kill her); Commonwealth v. Galicia , 447 Mass. 737 , 745, 857 N.E.2d 463 (2006) (declarant telephoned 911 and stated, "My husband is beating me up right now"), or immediately after b

2018See DeOliveira , 447 Mass. at 57 -58 , 849 N.E.2d 218 . 7 Certainly, there is a strong case for concluding that an out-of-court statement qualifies as an excited utterance when the facts indicate that the declarant made the statement while the crime was ongoing, see, e.g., Commonwealth v. Mulgrave , 472 Mass. 170 , 176-177, 33 N.E.3d 440 (2015) (victim's text message that her husband was present and threatening to kill her); Commonwealth v. Galicia , 447 Mass. 737 , 745, 857 N.E.2d 463 (2006) (declarant telephoned 911 and stated, "My husband is beating me up right now"), or immediately after b

2016In finding that the foundational requirements were met and in admitting the victim’s initial statements to Officer Hannah, the trial judge implicitly accepted the motion judge’s finding that those statements were not testimonial, and did not conduct an independent confrontation clause analysis. 4 Factors of importance to the analysis include “the degree of excitement displayed by the person making the statement ]; whether the statement is made at the place where the traumatic event occurred or at another place; the temporal closeness of the statement to the act it explains; and the degree of s

2016“We defer to the judge’s exercise of discretion unless the judge has made ‘ “a clear error of judgment in weighing” the factors relevant to the decision, . . . such *319 that the decision falls outside the range of reasonable alternatives’ (citations omitted).” Commonwealth v. Alleyne, 474 Mass. 771, 779 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169 , 185 n.27 (2014).

2015See Commonwealth v. Snell, 428 Mass. 766, 777, cert. denied, 527 U.S. 1010 (1999) (victim’s statements to neighbor immediately after defendant tried to kill her admissible as excited utterance).

2015See Commonwealth v. Snell, 428 Mass. 766, 777, cert. denied, 527 U.S. 1010 (1999) (victim’s statements to neighbor immediately after defendant tried to kill her admissible as excited utterance).

2006See also In the Interest of O.E.P., 654 P.2d 312, 318 (Colo. 1982) (“[t]he element of trustworthiness underscoring the excited utterance exception, particularly in the case of young children, finds its source primarily in ‘the lack of capacity to fabricate’ ”); Henry Vogt Mach.

2006Co. v. Chamberlain, 279 S.W.2d 224, 226 (Ky. App. 1955) (out-of-court statements of insane man admitted as excited utterances); Moore v. State, 26 Md.