Stidum v. Trickey, 88-2279

• Decision Date: 15 September 1989
• Docket Number: No. 88-2279,88-2279
• Parties: 28 Fed. R. Evid. Serv. 730 David STIDUM, Appellant, v. Myrna TRICKEY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 582

881 F.2d 582

28 Fed. R. Evid. Serv. 730

David STIDUM, Appellant, v. Myrna TRICKEY, Appellee.

No. 88-2279.

United States Court of Appeals Eighth Circuit.

Submitted March 16, 1989.

Decided Aug. 9, 1989.

Rehearing and Rehearing En Banc Denied Sept. 15, 1989.

Springfield Baldwin, St. Louis, Mo., for appellant.

Jared R. Cone, Jefferson City, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and DUMBAULD, ^* District Judge.

BEAM, Circuit Judge.

David Stidum challenges the district court's ¹ denial of his petition for writ of habeas corpus. We affirm.

I. BACKGROUND

Stidum was charged in the Circuit Court of St. Louis, Missouri, with second-degree murder. On July 21, 1983, Stidum's counsel made an oral pre-trial motion to suppress statements made by the victim, James Hall. Stidum's counsel maintained that the statements were hearsay utterances, not admissible under any evidentiary exception. The trial judge convened a hearing on the motion.

At the hearing, police officer Alfred Adkins testified that, several minutes after receiving a call on a shooting, he arrived at the scene and found a car with the passenger door open and Hall lying across the seat. On a question and answer basis, Hall stated that Stidum shot him. He gave the officer a description of Stidum's appearance, attire, and weapon. Other officers testified that Hall identified Stidum as his assailant but that he was hesitant about giving additional information because drugs were involved. Based on this evidence, the trial judge overruled defense counsel's motion to suppress, reasoning that Hall's statements were admissible under the "excited utterance" exception to the hearsay rule and under the doctrine of res gestae. ²

On October 11, 1983, the day of trial, Stidum's counsel renewed his objections to Hall's statements in a preliminary, in-chambers proceeding. The trial judge again denied suppression of the evidence, based on her previous ruling. Counsel then noted that he would be renewing his objection to keep the record clear. During trial, Stidum's counsel did not object to officer Adkins' testimony as to Hall's statements. After similar testimony by other officers, defense counsel renewed his objection to the hearsay statements.

The jury found Stidum guilty of second degree murder. On appeal, the Missouri Court of Appeals held that the hearsay issue was not properly preserved for appeal due to counsel's failure to object at trial to the admission of the evidence.

In his petition for writ of habeas corpus, Stidum alleged that (1) his sixth amendment right to confrontation had been denied because of admission of hearsay statements and (2) he was denied effective assistance of counsel due to his trial attorney's failure to object at trial to the introduction of the hearsay statements. The magistrate, ³ in his report and recommendation, concluded that the failure of Stidum's counsel to object timely at trial, coupled with Stidum's failure to show cause for his procedural default or any actual prejudice resulting therefrom, constituted a procedural bar to federal court review of the admissibility of Hall's statements. On the issue of ineffective assistance of trial counsel, the magistrate held that Stidum failed to meet his burden of showing the district court why, under the circumstances, the tactical decision not to object to the evidence at trial was objectively unreasonable, as required by Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Adopting the magistrate's recommendation, the district court denied Stidum's petition.

II. DISCUSSION

A. Confrontation Clause

Stidum contends that Hall's statements identifying Stidum as his assailant were inadmissible hearsay and thus violated his sixth amendment right to confront witnesses against him. In response, Trickey reiterates that procedural default bars review of this issue. Although the magistrate's analysis of the procedural bar was probably correct, we believe it to be more expeditious to go to the substance of the matter, violation of the Confrontation Clause, thus avoiding a review of the quagmire presented by a cause and prejudice analysis.

The Supreme Court has analyzed the relationship between the hearsay rules of evidence and the Confrontation Clause, concluding:

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Thus, reliability sufficient to satisfy the Confrontation Clause may be demonstrated merely by showing that the evidence was properly admitted under a hearsay exception which is deeply rooted in the common law. Id. Cf. Hopkinson v. Shillinger, 866 F.2d 1185, 1200 (10th Cir.1989) (holding that Wyoming's "catch-all" hearsay exception is not a firmly rooted hearsay exception, and therefore reliability is not demonstrated by proper admission of evidence).

We conclude that Hall's statements were properly admitted into evidence at trial because they fall within the "excited utterance" exception to the hearsay rule. ⁴ Stidum contends that the trial court erred in allowing admission of these statements under these rules because the statements were not spontaneous. We disagree.

A spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.

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The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue * * *.

6 J. Wigmore, Evidence Sec. 1745, at 193 (1976) (quoting Keefe v. State, 50 Ariz. 293, 297, 72 P.2d 425, 427 (1937)). Accordingly, this court has previously held that "it is the excitement and the spontaneity that supply the indicia of trustworthiness and reliability which supports the admission of hearsay under this exception." United States v. Elem, 845 F.2d 170, 174 (8th Cir.1988) (citing United States v. Woosley, 761 F.2d 445, 449 (8th Cir.1985)). See also United States v. Knife, 592 F.2d 472, 481 n. 10 (8th Cir.1979).

Wigmore notes that the statements need not be made contemporaneously with the excited cause but "may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated." 6 J. Wigmore, supra, Sec. 1750, at 203. The limit of time is not fixed and definite but depends on the circumstances of each case. Id.

Here, Hall made his identifying statements to officer Adkins while severely injured, bleeding and in pain, and apparently within minutes after being shot. Hall was "speaking under the stress of nervous excitement and shock produced by the act in issue." He had no reason to fabricate his story that Stidum shot him, and indeed he had every reason to accuse the person who actually caused the fatal wound. Under these circumstances, we conclude that Stidum's statements were made "spontaneously" within the definition of the excited utterance exception; that is, they were "the event speaking for itself through the instinctive words of the speaker, rather than words of a speaker narrating an event." Picker X-Ray Corp. v. Frerker, 405 F.2d 916, 922 (8th Cir.1969).

The excited utterance exception to the hearsay rule is one deeply rooted in the common law. See Berrisford v. Wood, 826 F.2d 747, 750 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 722, 98 L.Ed.2d 671 (1988). Therefore, because Hall's statements were properly admitted under a "firmly rooted hearsay exception," it necessarily follows that the reliability of those statements is sufficient to satisfy the Confrontation Clause. Thus, Stidum's sixth amendment rights...