United States v. Zuniga No. 13-1557.

On November 2, 2009, Mario Zuniga was at a bar playing pool with friends when Beatrice Suarez, an ex-girlfriend, entered the bar and slapped him across his face. Zuniga immediately took Suarez out the back door of the bar to an area enclosed by a fence. Kente Johnson-Taylor, curious to see what was going on, walked to the rear of the bar, opened the back door, looked into the back fenced-in area, and saw Zuniga holding a gun to Suarez's face.

Less than a minute later, Johnson-Taylor closed the door, walked back to his friend, Nicole Mitchell, and whispered to her that Zuniga had a gun and told her to call the police. Then Johnson-Taylor went to the front door, went outside, walked to the back of the building, stood on the outside of the enclosed area, and waited for the police.

As the police arrived, Zuniga and Suarez tried to climb the fence behind the bar to get away, but officers prevented their escape. In the process of securing Zuniga, the officers found a loaded Bryco .38 caliber handgun about seven or eight feet from where he was standing.

Zuniga was originally charged in state court for weapons offenses, but the case was dismissed and he was charged in federal court for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Before trial, the government filed a motion in limine to admit Johnson-Taylor's statement to Mitchell that Zuniga had a gun, arguing that the statement was both a present sense impression and an excited utterance under Federal Rules of Evidence 803(1) and 803(2). But Zuniga argued that Johnson-Taylor's statement was not made under the stress of a startling event and was "the product of his reflection, his careful consideration, and his deliberation."

The district court granted the government's motion. During trial, Johnson-Taylor and Mitchell both testified that Johnson-Taylor stated that Zuniga possessed a gun. Zuniga was convicted on both counts.

Zuniga argues that the district court abused its discretion by admitting under the present sense impression and excited utterance exceptions to the hearsay rule Johnson-Taylor's statement that Zuniga possessed a gun. The district court's evidentiary rulings are reviewed for abuse of discretion, United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013), and it will not be reversed "unless the record contains no evidence on which [the trial judge] rationally could have based [his] decision," United States v. Conley, 291 F.3d 464, 472 (7th Cir. 2002).

Because Johnson-Taylor's statement was properly admitted under the excited utterance exception, we do not decide whether it was also properly admitted under the present sense impression exception.[1] Under Rule 803(2), hearsay is admissible as an excited utterance if the statement made was related to a startling event and made while the declarant was under the stress of the excitement that caused the statement to be uttered. Fed. R. Evid. 803(2).

For an out of court statement to qualify under the excited utterance exception: (1) a startling event must have occurred; (2) the declarant must make the statement under the stress of the excitement caused by the startling event; and (3) the declarant's statement relates to the startling event. United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999).

First, Zuniga argues that Johnson-Taylor was neither startled nor excited when Johnson-Taylor witnessed Zuniga hold a gun to Suarez's head. Zuniga points to Johnson-Taylor whispering to his girlfriend, as opposed to blurting out that Zuniga had a gun, as evidence that Johnson-Taylor was not excited. Zuniga's reasoning is curious because in almost every imaginable scenario, seeing a person pointing a gun at the head of another is a startling situation. Furthermore, a declarant whispering, as opposed to yelling, does not necessarily mean that the statement cannot qualify as an excited utterance.

Zuniga cites no law that stands for the proposition that a statement cannot qualify as an excited utterance because it was whispered, as opposed to yelled. Moreover, it is not beyond belief that Johnson-Taylor would whisper, "he's got a gun," if he was trying to avoid being detected by Zuniga and having the gun pointed at him or prevent people from panicking, which the record indicates Johnson-Taylor was doing here.

At trial, Johnson-Taylor stated that Zuniga's demeanor was hostile and his body language was threatening. He also testified that Suarez was scared and that he was concerned that something was about to happen to her. When asked on direct examination why he did not confront Zuniga directly, he stated that the situation was "heated" and he did not want "it to come [his] way." He also said that he did not want to create a panic, which is bound to happen when people hear that someone is pointing a gun at another person.

Based on the evidence, we have no trouble finding that Johnson-Taylor witnessed a startling event and the volume at which Johnson-Taylor uttered, "he's got a gun," makes little difference in this case.

Second, Zuniga argues that even if Johnson-Taylor was startled, he did not make his statement while under the stress or excitement of an event. He asserts that because Johnson-Taylor thought about how he was going to avoid a dangerous situation, Johnson-Taylor could not have been under the stress of seeing Zuniga holding a gun.

But as we have explained, "a court need not find that the declarant was completely incapable of deliberative thought at the time he uttered the declaration" in order for it to be admissible under the excited utterance exception to the hearsay rule. Joy, 192 F.3d at 766. "All that the exception requires is that the statement be made contemporaneously with the excitement resulting from the event." Martinez v. McCaughtry, 951 F.2d 130, 135 (7th Cir. 1991).

Here, it is clear that Johnson-Taylor uttered his statements sufficiently contemporaneously with Zuniga pointing a gun at Suarez's head. Johnson-Taylor testified at trial that the time between when he saw Zuniga holding a gun and when he told Mitchell what he saw was maybe five seconds. Mitchell testified that it was less than a minute. Both of these sworn accounts suggest that Johnson-Taylor's statement was made under stress, as less than a minute had passed from the time he saw Zuniga pointing a gun at Suarez to the moment he relayed that information to Mitchell. Cf. Joy, 192 F.3d at 766 (admitting under the excited utterance exception declarant's statement that was made a few minutes after witnessing an exciting event); United States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007) (finding that declarant's statements to 911 constituted an excited utterance where he made them about one to two minutes after leaving a dangerous situation and going into apartment); see also Boyce, 742 F.3d at 795-96 (admitting under the excited utterance exception declarant's statement to 911 made just after she was battered and ran to a neighbor's home to call 911).

Affirmed

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