Issues Presented:

1) Whether the law-of-the-case doctrine precludes a substitute justice in a re-trial from overturning an evidentiary ruling of two prior judges, in the first trial and the re-trial.

2) Whether the evidence was sufficient to infer a pre-requisite to admission of an excited utterance statement, that the statement be based upon the personal observation of the declarant.  

 

Holding:

(1) Law of the case does not preclude a third trial judge from overturning an evidentiary ruling by two prior judges in that same case, absent a showing of prejudice resulting from that reversal; and

(2) A statement by an unidentified person is inadmissible as an excited utterance where there is  no evidence from which a trier of fact can reasonably infer that the statement was based upon the personal observation of the declarant.

 

CAL Observes: This decision reversed an AD1 order (thanks to our own Susan Salomon!) affirming the trial court’s admission of a statement heard in the background of a 911 call by an unidentified person, under the excited utterance exception to the hearsay rule. During a 911 call made within five minutes of the shooting, someone in the background yelled out that “it was Twanek...” The defendant’s fingerprint was later found on the door of a vehicle from which the gunman had slipped away. No weapon was ever recovered, and the defendant was not identified in a lineup. At a first trial, the 911 call was excluded as inadmissible hearsay, and the jury deadlocked. At the re-trial, a new judge also disallowed the statement but she took ill, and a third judge then admitted the statement at the re-trial as an excited utterance. The defendant was then convicted.

 

(1) On the law of the case issue, the Court refused to apply a per se rule as to a substitute judge’s reconsideration of a prior judge’s evidentiary ruling. It held that whether to admit hearsay as an excited utterance is an evidentiary decision “left to the sound discretion of the trial court,”and since such decisions may be reconsidered on retrial, there is “no reason” to apply a different rule to a substitute judge within the same re-trial. The Court found it “notable” that the defendant did not claim reliance on or undue prejudice from the reversal of the ruling  – leaving the door open that a showing of prejudice could be a basis for finding an abuse of discretion in future cases. Absent prejudice however, it looks like prior evidentiary rulings can be raised, at the least, again and again.

 

(2) On a happy note, the excited utterance ruling clarifies a requirement of that rule that can be helpful to our clients.

 

Both parties here agreed that the question of whether a declarant personally observed an event is normally a mixed question of law and fact not reviewable by the COA. The Court’s inquiry was therefore limited to whether there was support in the record for the trial court’s ruling here, and the Court found there was none. 

 

The Court ruled that while the declarant can be an unidentified bystander, facts still must exist to establish personal observation. Here the declarant’s “bare conclusory statement” ... “contained no basis from which personal knowledge can reasonably be inferred.”  Evidence that corroborated the defendant’s presence at the scene was rejected as irrelevant to whether there was personal observation by the declarant. The Court found no evidence as to whether the declarant saw anything, or whether he was just “parroting” what he had been told by others.

 

The Court found the error was not harmless, rejecting the defense due process claim but finding as a non-constitutional matter that the evidence was not overwhelming, and the 911 call made a difference. It also noted the prosecutor’s “heavy reliance” on the 911 call in summation. 

 

Finally, in her concurrence, Judge Rivera questions the justification for the excited utterance exception to the hearsay rule at all, given the advances in psychology and neuroscience that demonstrate its weak foundation; that is, people’s “inability to accurately recall facts when experiencing trauma, and, in turn, to create falsehoods immediately.” After citing sources supporting her conclusions, Rivera notes that since the premise for the excited utterance exception was not challenged in this case, that challenge will have to wait for another day.