Child’s statement admissible as excited utterance

A seven-year-old child’s statement that appellant was going to kill the child’s mother was properly admitted under the excited utterance exception to the hearsay rule.

Background

Appellant Graham had been living with M.E. and her twin sons. As M.E. woke up to take the twins to school, Graham hit M.E., kicked her “multiple times and “strangled her to the point where she couldn’t breathe and felt severe pressure in her eyes. These attacks continued intermittently for around eight hours[.] …

“M.E. eventually snuck away from Graham and called 911. During the call, M.E. whispered to the 911 operator that she needed help at her address. By the time the police arrived, Graham had escaped the home through the back door. M.E. spoke to Corporal A.L. Taylor, who observed that M.E. appeared upset and had a red mark on her nose. The police advised M.E. to contact them again if Graham returned.

“Twenty minutes later, after the police left, Graham returned to M.E.’s home. M.E. called 911 a second time and told the operator, ‘He came back’ and ‘I have to hang up cause if he sees me he’s going to beat me.’

“Graham kicked M.E.’s front door in and then pushed her through her bathroom door, causing the whole door frame to come out.” Graham kicked M.E. She lost consciousness. At trial, M.E. testified that she awoke to Graham pouring liquid from a tea pitcher on her and heard her seven-year-old son say, ‘You’re going to kill my mama.’

“Graham objected to the son’s statement as hearsay, but the trial court overruled the objection and permitted M.E. to testify to her son’s statement under the excited-utterance exception to the hearsay rule.

“The police eventually returned to M.E.’s home a second time. … While speaking with M.E., Corporal Taylor observed red marks from the bottom of her neck to her chest that he did not observe during the first visit to the home. …

“A neighbor eventually took M.E. and her sons to M.E.’s father’s home, where M.E. made a third 911 call. During this call, M.E. said that Graham ‘choked me’ and had been ‘strangling me.’ M.E. then returned to her home to meet with the police again.”

Graham was apprehended, tried and convicted of strangulation, abduction, and three counts of domestic battery. He appeals.

Excited utterance

“Graham first argues that the trial court erred in admitting M.E.’s son’s hearsay statement, ‘You’re going to kill my mama.’ Graham asserts that the son’s statement does not fall under the excited-utterance exception to the hearsay rule because no evidence showed that the son had firsthand knowledge of Graham’s attacks on M.E.

“Graham contends that the ‘[t]he child may not have been present, could have been outside, in another room otherwise occupied, or even asleep during the alleged violence.’ …

“[T]he evidence shows that M.E.’s son did not attend school on the date of the incident and was present at M.E.’s home throughout the time that Graham attacked M.E. Considering the extremely violent nature of these attacks – which not only harmed M.E., but also caused significant damage to M.E.’s home – it is reasonable to infer that M.E.’s son had firsthand knowledge of these attacks as they were occurring in M.E.’s home.

“Additionally, M.E.’s son’s statement that ‘You’re going to kill my mama’ was made as he directly observed Graham pouring liquid from a tea pitcher onto M.E. as she was lying on the kitchen floor regaining consciousness.

“This further shows the son’s firsthand knowledge of the incident, and also shows that his statement was made as a spontaneous reaction to a startling event, rather than as the result of deliberation.”

The child’s statement was correctly admitted as an excited utterance. …

Inconsistent statement

Graham secondly argues that the trial court erred in admitting M.E.’s third 911 call during the Commonwealth’s redirect examination of M.E.

“Graham asserts that the Commonwealth should not have been permitted to play the third 911 call to rehabilitate M.E.’s credibility because M.E. did not give testimony at the preliminary hearing that was directly inconsistent with her trial testimony that Graham had strangled her.

“Rather, M.E. only testified during the preliminary hearing that she could not remember whether Graham had touched her neck.

“‘[T]here is a general rule excluding the prior consistent statements of a witness that are offered for the purpose of buttressing his testimony at trial.’ … But as an exception to this rule, ‘[w]here the opposing party has attempted to impeach the witness by offering a prior inconsistent statement made by the witness, prior consistent statements made by the witness are admissible to support the witness.’ …

“[D]uring Graham’s cross-examination of M.E., Graham impeached M.E.’s credibility by offering M.E.’s prior statement at the preliminary hearing that she could not remember whether Graham had ever touched her neck.

“Although M.E.’s prior statement that she could not remember was not directly contradictory to her trial testimony that Graham had strangled her, the discrepancy nevertheless called the credibility of M.E.’s trial testimony into question by suggesting that M.E. had manufactured her testimony that Graham had strangled her. …

“[A] reasonable jurist could conclude that M.E.’s testimony at the preliminary hearing that she could not remember was inconsistent with her trial testimony, thus triggering the exception permitting the Commonwealth to introduce a prior consistent statement to rehabilitate M.E.’s credibility.”

The third 911 call was properly admitted.

Sufficient evidence

“M.E. testified in detail as to the attacks that Graham inflicted upon her throughout the day of the incident[.] … M.E. also testified as to how Graham prevented her from escaping her home, causing her to feel that she was not free to leave. The trial court … ultimately found her testimony to be credible.

“Although M.E. admitted to having memory problems and gave prior testimony that was inconsistent with her trial testimony, ‘[t]estimony may be contradictory or contain inconsistencies without rising to the level of being inherently incredible as a matter of law.’ …

“Moreover, the inconsistency in M.E.’s testimony regarding the strangulation was successfully rehabilitated by the Commonwealth through the introduction of M.E.’s third 911 call, where M.E. stated to the operator that Graham ‘choked me’ and had been ‘strangling me.’ …

“Further, M.E.’s testimony was corroborated by her 911 calls, the photographs of her injuries, and the sheriff’s deputies’ testimony on their observations of M.E.’s injuries and the damage to her home.”

There was sufficient evidence to convict Graham of strangulation, abduction, and three counts of domestic battery.

Affirmed.

Graham v. Commonwealth, Record No. 0969-22-3, May 23, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of Pittsylvania County (Allen). William C. Meyer II for appellant. Susan Hallie Hovey-Murray, Jason S. Miyares, John Beamer for appellee. VLW 023-7-183, 10 pp.