The opinion of the court was delivered by: Donovan W. Frank United States District Judge
This matter is before the Court on Defendant's Motion for New Trial (Doc. No. 51). For the reasons set forth below, the Court denies Defendant's motion.
The Indictment in this case charged Defendant Brian Gordon Graves ("Defendant") with Assault with a Dangerous Weapon, in violation of 18 U.S.C. § 113(a)(3), and Domestic Assault by an Habitual Offender, in violation of 18 U.S.C. § 117. (See Doc. No. 1.) Specifically, the Indictment asserted that, on or about October 6, 2012, Defendant, who had been previously been convicted of two prior violent offenses, assaulted L.R.K. with a shotgun on the Red Lake Indian Reservation. (Id.) Both counts proceeded to trial by jury. Prior to the commencement of the jury trial, the Court heard an offer of proof with respect to the hearsay statements of L.R.K. to law enforcement officer Dana Lyons, who responded to L.R.K.'s residence following a neighbor's 911 call reporting gunshots. Captain Lyons testified as to L.R.K.'s demeanor and the statements L.R.K. made when she came to the door. The Court admitted L.R.K.'s statements, made at the door, and prior to questioning by law enforcement, as excited utterances. The Court further denied Defendant's request to call L.R.K. to testify during the offer of proof. On January 31, 2013, the jury returned its verdict, finding Defendant guilty of Counts 1 and 2. (Doc. No. 42.)
Defendant now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Doc. No. 51.) Defendant claims that the Court: (1) erroneously admitted hearsay testimony; and (2) improperly denied Defendant's request to call the victim during the offer of proof on the hearsay issue. The Government opposes Defendant's motion. (Doc. No. 55.)
Rule 33 of the Federal Rules of Criminal Procedure provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The court should balance the alleged errors against the record as a whole and evaluate the fairness of the trial to determine whether a new trial is appropriate." United States v. Eagle, 137 F.3d 1011, 1014 (8th Cir. 1998) (internal quotations omitted); see also United States v. Davis, 103 F.3d 660, 668 (8th Cir. 1996) (In assessing whether a defendant is entitled to a new trial on the basis that the verdict is contrary to the weight of the evidence, "the district court weighs the evidence and evaluates anew the credibility of the witnesses to determine if a miscarriage of justice may have occurred.").
A.Admissibility of Excited Utterances
Hearsay is not admissible unless one of several exceptions applies. See Fed. R. Evid. 802; United States v. Constantine, 674 F.3d 985, 989 (8th Cir. 2012). One such exception, known as the "excited utterance" exception, applies to any statement "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed. R. Evid. 803(2). Excited utterances are not excluded by the rule against hearsay, regardless of whether the declarant testifies as a witness. See generally Fed. R. Evid. 803; see also United States v. DeMarce, 564 F.3d 989, 997 (8th Cir. 2009) ("Therationale of the excited utterance exception is that the stress of nervous excitement orphysical shock stills the reflective faculties, thus removing an impediment totruthfulness.").
In determining whether a declarant was under "the stress of excitement" at the time she made a statement, a court must consider "the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement." United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007). The court must also evaluate "whether the declarant's stress or excitement was continuous from the time of the event until the time of the statement." Id.
In ruling that L.R.K.'s initial statements to Captain Lyons, at the time he arrived on the scene, constituted excited utterances, the Court considered the relevant factors and noted, in particular, that, despite the approximately 35 minutes it took Captain Lyons to arrive at the scene, L.R.K. appeared to have been crying, was visibly distraught, disturbed, and still emotionally affected and stressed by the event that had occurred. The Court further noted that L.R.K. did not place the 911 call to police and thus did not expect law enforcement to arrive at her residence. Ultimately, the Court admitted only the initial statements made by L.R.K. and not those statements made in response to police inquiry during the formal interview, which took place after Captain Lyons entered the house and began to question L.R.K. about precisely ...