Improperly admitted statements lead to new trial

The Tennessee Court of Criminal Appeals reversed a Davidson County child abuse conviction because (1) Statements against the defendant were improperly admitted as excited utterances and (2) The error was not harmless.

An excited utterance is an exception to the hearsay rule that excludes out of court statements offered to prove the truth of the matter asserted.  Tenn. R. Evid. 803(2).  The excited utterance exception applies when (1) There is a startling event or condition that causes the stress of excitement; (2) The statement relates to the startling event or condition; and (3) The statement was made while the declarant was under the stress of excitement.  In determining whether the statement was made while the declarant was under the stress of excitement, a court may consider the interval between the event and the statement; the nature and seriousness of the events; the appearance, behavior, outlook, and circumstances of the declarant; and whether the statement is in response to an inquiry or whether it is self-serving.

The erroneous admission of evidence is subject to harmless error analysis.  The test for harmless error analysis is found in Tennessee Rule of Appellate Procedure 36(b), which states, “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”

In this case, the witnesses testified that the declarant “wasn’t upset” and “calm [though] scared.”  Moreover, his disclosure was “hesitant,” and it came after ten minutes of questioning.  Given the above, the court of criminal appeals concluded that the victim was not under the stress or excitement at the time he made the statements.  In particular, the court noted that the statements lacked “spontaneity.”

Since the admission of the statements was error, the court of criminal appeals then considered whether the error was harmless or reversible.  The court noted that the defendant had accounted for all of the child’s injuries with the statement that the child had fallen from a swing.  Also, the victim testified at trial that he had fallen from a broken swing.  While there was some evidence to support the conviction, the only direct evidence was the improperly admitted statements.  Therefore, the court reversed the conviction and remanded for a new trial.

State v. Bishop, M2015-00314-CCA-R3-CD (Tenn. Crim. App. Dec. 16, 2016)

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