Opinion
Cr. ID No. 0607023686.
Submitted: July 16, 2007.
Decided: July 26, 2007.
Decision upon defendant's motion in limine.
OPINION
The defendant has filed a motion in limine directed at the admissibility of a statement which the State relies upon, in part, for the identification of the defendant.
At the commencement of the hearing, the parties announced the following stipulation:
[O]n July the 28th of last year [2006] at about 1:20 in the morning in the 1200 block of North Claymont Street, City of Wilmington, New Castle County, state of Delaware, just outside of Leroy's after-Hours Club that the victim in this matter, John Triplett, died from gunshot wounds. There were two different shots, one to the chest area and one to the leg.
July 16, 2007 Evidentiary Hearing Transcript at 4.
The statement in question, which was allegedly made by an unidentified person who left the scene of the crime before the police arrived, is "this guy in the red shirt shot the guy in the white hat." There were two female patrons of the Club, Terri Ayers-Bonner and Pamela Morehead, who heard the statement. The police relied upon that description to link the defendant to the shooting when he was discovered later the same evening wearing a red shirt and suffering from a gunshot wound to the wrist. For the following reasons, the defendant's motion in limine to exclude the statement is DENIED.
FACTS
On July 28, 2006, John Triplett (Triplett), Terri Ayers-Bonner (Ayers-Bonner), Pamela Morehead (Morehead), Charles Burley (defendant), and at least one unidentified female were patronizing Leroy's Lounge, an after-hours bar, located at 1220 N. Claymont Street, Wilmington, DE. The testimony of Ayers-Bonner, Morehead, and the investigating officer, Detective Matthew Hall, were presented at a hearing on July 16, 2007.
Id.
Ayers-Bonner testified to the following. She saw the defendant at Leroy's on the evening of July 28, 2006, wearing a red shirt and dark pants. Triplett was wearing a white hat. After Ayers-Bonner, Morehead, and Triplett had been at Leroy's for approximately forty-five minutes, the unidentified female indicated she needed to go to a fast food restaurant because she did not have any eating utensils at home. Triplett advised that he had some silverware in his vehicle which he would give to the female. Triplett then exited the bar. Ayers-Bonner did not know where the defendant was when Triplett left the bar to go to his vehicle. What seemed to her like seconds later, Ayers-Bonner heard a gunshot outside the door. As soon as she heard the gunshot she ran up the stairs towards the ladies bathroom. An unidentified black male (declarant) ran into the bar and up the stairs behind her. She was unsure how the declarant got behind her because she believed that Morehead was following right behind her up the stairs. Ayers-Bonner, the declarant and Morehead all ended up in the ladies bathroom at the top of the stairs. According to Ayers-Bonner, the declarant stated that "this guy in the red shirt shot this guy in the white hat." After a short period of time, Ayers-Bonner, Morehead and the declarant returned downstairs and went outside. Ayers-Bonner attended to Triplett who had been shot twice, and waited for police to arrive. The declarant left the scene before police arrived. Ayers-Bonner testified that she had never seen the declarant before in her life. He had not been in the bar that evening prior to the shooting. She could not describe the declarant other than to say that he was a tall, dark black man.
Id.
Id.
Id. at 6, 13.
Id. at 6.
Id.
Id. at 7.
Id.
Id.
Id. at 7-8.
Id. at 9.
Id. at 10, 13-14.
Id. at 13.
Morehead testified that she too was present at Leroy's that evening with Ayers-Bonner and Triplett. According to Morehead there were other people in the bar, including one guy who seemed to be agitated; he was continuously walking back and forth. That man kept trying to say something to Triplett. When asked if the person who had been pacing was in the courtroom, Morehead responded: "If that's him [referring to the defendant], he has different hair." The man who was pacing was wearing a red shirt, and the bartender called him Burley, so she believed that to be his name. After she, Ayers-Bonner and Triplett, had been at Leroy's for approximately fifteen minutes, Triplett went outside to retrieve some eating utensils from his truck. Morehead testified that the pacing man was no longer in the bar when Triplett went out to his truck. Morehead heard two or three gunshots coming from outside; she thought it sounded like a drive-by. An unknown male, the declarant then entered the bar. He stood at the door and looked outside. The bartender and everybody else in the bar were telling him to close the door and lock it, but he continued to look outside. The gunshots came in rapid succession. After the shots stopped, the declarant slammed the door and ran up the stairs. Morehead thought she was behind Ayers-Bonner as she ran up the stairs but the declarant somehow got in front of her and she followed him up the stairs. Ayers-Bonner, Morehead, and the declarant all ended up in the ladies bathroom at the top of the stairs. Morehead testified that the declarant said, "the guy with the red shirt walked up to the guy with the white hat and just shot him." Morehead realized that the guy in the white hat was Triplett, so she ran back downstairs and out the door where she saw Triplett lying in the road with a gun near him. Morehead described the declarant as a 25-30 year old male wearing a big white T-shirt, short Capri jeans, and white sneakers. He had a full beard. She had never seen the declarant before. He had not been in the bar that evening prior to the shooting. Morehead testified that the declarant seemed more scared than she was. Detective Matthew Hall testified that despite his best efforts he has been unable to identify or locate the declarant who entered the bar after the shots were fired and made the statement which the defendant seeks to exclude.
Id. at 24.
Id.
Id. at 37.
Id.
Id.
Id. at 37-38.
Id. at 24, 28.
Id. at 37.
Id. at 25.
Id.
Id.
Id. at 31, 33.
Id. at 25.
Id. at 27.
Id. at 26, 34.
Id. at 26.
Id. at 26, 35.
Id. at 26.
Id.
Id. at 27.
Id. at 28.
Id. at 27.
Id. at 43-44.
DISCUSSION
The State offers the statement at issue as hearsay subject to exclusion as a present sense impression D.R.E. 803(1) or as an excited utterance D.R.E. 803(2). D.R.E. 803(1) and (2) track the corresponding federal rules.The defendant argues that the statement is testimonial, and that the State has failed to meet the high standard of proof necessary for either hearsay argument advanced.
The analysis begins with a determination as to whether the statement at issue is testimonial, as testimonial statements must be excluded unless the defendant has had a prior opportunity to cross examine.
Crawford v. Washington, 541 U.S. 36, 59, State v. Johnson, 2005 WL 1952939 at *2 (Del.Super.).
The essence of a testimonial statement is that it is given, ex parte, "for the purpose of establishing or proving some fact."
Various formulations of this core class of "testimonial" statements exist: " ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements. . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in judgment); "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," (citation omitted).
Crawford, 541 A.2d at 51.
Id. at 51-52.
The statement described in this case was not testimonial. It was not given in response to ex parte questioning for investigative or prosecutorial purposes.
The next step in the analysis is to consider whether the statement is admissible under the hearsay exceptions provided under D.R.E. 803(1) or 803(2).
The parties agree that the statement at issue is hearsay. The State has the burden of proving by a preponderance of the evidence that it fits within one of the firmly rooted hearsay exceptions. Both present sense impression and excited utterances are firmly rooted hearsay exceptions.
Warren v. State, 774 A.2d 246, 254 (Del. 2001), D.R.E. 803(1) and 803(2), Gannon v. State, 704 A.2d 272, 274 (Del. 1998).
The defendant cautions that the burden of proof is heavier in a situation, such as this, where the declarant is unidentified.
Miller v. Keating, 754 F.2d 507 (3d Cir. 1985), United States v. Mitchell, 145 F.3d 572 (3d Cir. 1998), Shinners v. K-Mart Corp., 847 F.Supp. 31, 34 (D.Del. 1994).
I will address first the elements of an excited utterance. The elements are: "(i) a startling occasion; (ii) a statement relating to the circumstances of the startling occasion; (iii) a declarant who appears to have had opportunity to observe personally the events; and (iv) a statement made before there has been time to reflect and fabricate."
United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001), D.R.E. 803(2), Gannon, 704 A.2d at 274.
The first element is easily satisfied: a shooting occurred and the sound of shots was heard by all involved. The startling nature of the event is reflected in the conduct of all in the vicinity, as reported at the hearing.
The second element is satisfied by the statement reported by the two witnesses. The unknown declarant said "the guy in the red shirt shot the guy in the white hat." That statement relates to the circumstances of the startling event.
The third and fourth elements can be considered together in the context of this case. The evidence is clear that the gun shots were heard, the unknown declarant entered the bar, ran up the stairs into the women's bathroom along with Ayers-Bonner and Morehead who were fleeing the violence of the gunshots, and he then made the statement at issue. The uninterrupted time sequence compels the conclusion that he saw the event he describes, reacted to it with a flight response, and then commented about what he saw. The witnesses describe the declarant as scared. There was no opportunity to derive the information from any source other than personal observation, and no opportunity to reflect and fabricate a story.
The heavy burden associated with the admission of a statement from an unidentified and unavailable declarant has been met. The statement is an excited utterance, is not testimonial, and is admissible as a firmly rooted hearsay exception.
WHEREFORE the defendant's motion in limine is DENIED.
IT IS SO ORDERED.