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Body Camera Evidence Is ‘Excited Utterance’

At defendant’s trial for assault against a family member, third or subsequent offense, the Norfolk Circuit Court will admit as “excited utterances” the victim’s 911 call recording and statements captured by a police officer’s body camera when police arrived, as well as video of defendant’s conduct at that time and statements he made while in the patrol car.

Hearsay exception

A hearsay exception exists for excited utterances, which are statements prompted by a startling event, and not the product of premeditation, reflection or design. An out-of-court statement also raises Confrontation Clause issues if the statement is testimonial and the declarant is not called as a witness. A statement is testimonial, in general, if the circumstances objectively indicate there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events.

Here, defendant seeks to exclude the body camera video footage of him, claiming it is unfairly prejudicial. The commonwealth, on the other hand, asserts the footage is probative of defendant’s state of mind. In the relevant section of the video, defendant appears to be intoxicated and belligerent when the police arrive. He also makes unsolicited comments from the back seat of the patrol car. The court finds that the video depicting defendant and recording his statements is probative of his state of mind, and that the probative value is not substantially outweighed by the danger of unfair prejudice. The court notes that parts of the video also may include party admissions by defendant.

The court denies defendant’s motion to exclude the portions of the officer body camera video that depict him. He nevertheless may request that the court issue an appropriate limiting instruction to the jury at trial.

Video of victim

Defendant also seeks to exclude the body camera video footage of the victim, claiming that it is both testimonial and hearsay. The commonwealth, by contrast, contends the portions of the video it intends to use constitute excited utterances, are not testimonial and therefore are exceptions to the hearsay prohibition.

In the video, there are three sections in which the victim speaks. First, the victim makes comments while the police are confronting defendant on the front porch of the house. These statements are excited utterances. The victim is distraught and asks police to remove defendant from her house. Little time elapsed between the alleged assault and the statements; the statements were spontaneous and victim is not “talking about the facts.”

Second, the victim makes statements to police while in the living room of the house after defendant has been placed to the back of the police car. Third, the victim makes additional statements while in the kitchen of the house as the police took photographs of her injuries and filled out charging documents against defendant. These statements are not excited utterances and are in fact testimonial. The commonwealth says it will not seek to admit them absent a need to impeach the victim. The court grants the motion to exclude these portions of the body camera video that depict the victim, although the commonwealth may seek to admit these sections of the video at trial for impeachment purposes as appropriate. The court also says the 911 recording of the call by the victim is an excited utterance, is nontestimonial and is admissible. In the call, the victim is hysterical, crying and screaming that she was hit in the mouth by defendant and is bleeding. Defendant apparently is still in the home at the time of the call and victim is requesting that defendant be removed, presumably out of fear of further harm.

The court’s ruling does not relieve the commonwealth from satisfying at trial the foundational and relevance requirements to admit the evidence discussed herein, nor does it prevent defendant from raising other relevant objections at trial.

Commonwealth v. Sumner (Lannetti) No. CR 17-1144, Aug. 11, 2017; Norfolk Cir.Ct. VLW 017-8-072, 6 pp.

VLW 017-8-072