Ferrier v. Duckworth
| Decision Date | 10 July 1990 |
| Docket Number | No. 89-1104,89-1104 |
| Citation | 902 F.2d 545 |
| Parties | 30 Fed. R. Evid. Serv. 448 Hubert FERRIER, Petitioner-Appellant, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Hubert Ferrier, Indiana State Prison, Michigan City, Ind., pro se.
Kimberlie A. Forgey, Deputy Atty. Gen., Indianapolis, Ind., for Jack R. Duckworth.
Kimberlie A. Forgey, Deputy Atty. Gen., for Attorney General of State of Indiana.
Before CUMMINGS and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.
Hubert Ferrier was sentenced to life imprisonment for murder, and after exhausting his state remedies in Ferrier v. State, 266 Ind. 117, 361 N.E.2d 150 (1977), 274 Ind. 585, 413 N.E.2d 260 (1980), 514 N.E.2d 285 (Ind.1987), sought federal habeas corpus. His appeal raises two issues that merit discussion, the first involving the "excited utterance" exception to the hearsay rule.
Ferrier had an argument in a bar over a woman, and left to get his shotgun. Accompanied by his brother and a fifteen-year-old friend, Stanley Ricketts, Ferrier fetched the shotgun and shells, loaded the gun, and returned to the bar, parking in its parking lot. Carrying the gun and accompanied by his brother, Ferrier entered the bar and shot dead the man with whom he had had the argument. Ricketts, who had remained outside, had told a woman who was standing across the street from the bar that there was about to be a shooting, and a few seconds later she heard the shot. She was permitted to testify to what Ricketts had told her. Ferrier argues that this ruling denied him his constitutional right to be allowed to confront the witnesses against him. Ricketts did not testify; why, we do not know. He was not prosecuted for his role in the events leading up to the murder.
Since Ricketts was not a witness against Ferrier, there was no violation of the confrontation clause in a literal sense, as there had been in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The clause has also, however, been interpreted to place limits on a prosecutor's use of hearsay evidence. Exactly what those limits are is unclear. Nelson v. Farrey, 874 F.2d 1222, 1227-28 (7th Cir.1989). Possibly they are no stricter than the limits imposed by the due process clause on the use of unreliable evidence, for we have said that the confrontation clause in its nonliteral sense should be understood "to forbid the admission of hearsay evidence so likely to be unreliable that it threatens a miscarriage of justice." Id. at 1228. One supposes the admission of such evidence would also raise profound questions under the due process clause. No matter. The hearsay rule is designed to prevent the admission of unreliable hearsay but to permit through its many exceptions the admission of reliable hearsay. The rule has its critics, of course; but in its present form it is the product of careful elaboration and critique; its settled exceptions are unlikely to violate any clause of the Constitution. Smith v. Fairman, 862 F.2d 630, 636 (7th Cir.1988).
The exception to the hearsay rule for the "excited utterance" or "spontaneous exclamation"--"a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," Fed.R.Evid. 803(2)--is one of the settled exceptions. The thinking behind it is that lying is deliberate, and a person who is under stress induced by a startling occurrence cannot deliberate; so the fact that the statement he blurted out in these circumstances was not made under oath does not detract substantially from its truthfulness. 6 Wigmore, Evidence Sec. 1747, at p. 195 (Chadbourn ed. 1976). This reasoning may give too much weight to the oath, whose terrors have diminished in this secular age, and ignores the possibility that stress may induce inaccurate, even if sincere, utterances. Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.Car.L.Rev. 1, 31 (1987). But this is just to say that the excited utterance may not be as reliable a form of hearsay as some have thought. It does not follow, and we decline to hold, that the confrontation clause makes all excited utterances inadmissible, unless perhaps the maker is available for cross-examination. The confrontation clause is not a proper vehicle for revolutionizing the law of evidence.
Whether Ricketts' statement to the bystander was an excited utterance is of secondary importance. The confrontation clause does not enact the hearsay rule, and...
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