Castillo v. United States, 12-CM-161 (decided August 29, 2013)
Players: Glickman, Oberly, Newman. Opinion by Oberly. PDS for Mr. Castillo. Trial judge: Morrison.
Facts: Mr. Castillo was accused of groping his teenaged stepdaughter, E.M. Her brother, Francisco, called 911 at two o’clock on Christmas morning and calmly stated that he had seen “something inappropriate” between his sister and Mr. Castillo. At trial, Francisco and E.M. both testified that they had been intoxicated and remembered little of the incident. Two police officers, however, testified that after they responded to the scene, a distraught E.M. and Francisco each stated that Mr. Castillo had touched E.M.’s breast. These reports were the sole basis for the trial court’s guilty verdict.
Issue: Whether the trial court erred in admitting E.M. and Francisco’s reports of a touching under the excited utterance exception to the rule against hearsay.
Held: The trial court erred in admitting the reports, since the government had failed to establish that that they were “‘made within a reasonably short period of time after the [exciting] occurrence so as to assure that the declarant[s] ha[d] not reflected upon [their] statement[s] or premeditated or constructed’” them. Castillo, slip op. at 12-13 (quoting Odemns v. United States, 901 A.2d 770, 777 (D.C. 2006)). Here, the alleged touching could have happened as early as midnight, and the officers did not arrive until after the 911 call, leaving a possible “two-hour time span, at least” between the exiting event and the siblings’ reports. Id. at 16-17.
Of Note:
- For a statement to qualify as an excited utterance, “there must be some evidence from which a finder of fact can reasonably infer that the statement was made within a reasonably short period of time after the startling event.” Id. at 15.
- The Court held that the “two-hour times span . . . [left] plenty of time for reflection,” and noted that it has “[r]arely, if ever, . . . upheld the admission of statements made more than one hour after the alleged incident, unless the declarant was a young child, or the incident was especially serious.” Id. at 17 (citations omitted)
- “The seriousness of the startling event”—here, “a relatively minor assault”—“is relevant to the determination of whether the utterance occurred within a reasonably short period of time such that it was made spontaneously and without reflection.” Id. at 18.
- The Court noted that Francisco’s calm 911 call also indicated that his excitement when speaking to police was “more likely” caused by reflecting on the incident than by its “‘fresh emotional impact,’” as required for an excited utterance. Id. at 20-21 (quoting In re L.L., 974 A.2d 859, 863 (D.C. 2009)).
How To Use: Regardless of the declarant’s demeanor when making an inculpatory statement, the statement cannot be admitted as an excited utterance unless the government establishes that it was made close enough in time to the exciting event that the declarant was unable to reflect—generally, within no more than one hour. Even when the interval is less than one hour, defense counsel can argue against admission by emphasizing the relatively low severity of the exciting event and highlighting evidence that the declarant did calm down or reflect—however briefly—before making the proffered statement. FT.
