Victim’s Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made

The Fourth Department determined the victim’s statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim’s treatment and her statements.  The court determined that the stress of the situation had not diminished at the time the statements were made:

It is well settled that “[t]he admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his [or her] reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” … . Notably, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

There is no dispute that there was a period of time between the victim’s treatment by the EMT and her statements. During that period of time, however, the victim’s child and niece were still in the apartment with defendant, the man who had kidnapped the victim and beaten her with a loaded gun. We thus conclude that “ ‘at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still . . . her reflective faculties’ . . . , including both the physical and emotional stress of the [kidnapping and] beating earlier administered by defendant[,] . . . the stress of being confined in [an apartment and car] with defendant following the attack,” and the stress of having two small children still in harm’s way… . People v Miller, 191, 4th Dept 3-28-14