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Statements on 911 call and to police at the scene admissible under excited utterance exception to hearsay rule

State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)

The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.

A jury convicted Hunter of crimes relating to domestic abuse. He challenged the admissibility of statements that the victim and her sister made on a 911 call after the 5 minute and 20 second mark. While statements were hearsay, the court of appeals held that they qualified as excited utterances under § 908.03(2). That exception to the hearsay rule requires proof that: (1) a startling event or condition occurred; (2) the hearsay statement related to that startling event; and (3) the declarant made the hearsay statement while under the stress of the startling event. State v. Huntington, 216 Wis. 2d 671, 682, 575 N.W.2d 268 (1998).

According to the court of appeals, the sister’s statements met this test (even after the 5 minute mark) because they were still under the stress of Hunter’s attack; they were yelling and cursing and begging the 911 operator for help. Slip op. ¶21. Hunter also challenged the victim’s initial statements to an officer at the scene of the crime. The court of appeals affirmed the admission of those statements for all the same reasons. Slip op. ¶¶22-23.

That left the question of whether the excited utterances were testimonial in nature because then their admission into evidence would violate the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 51 (2004). The court of appeals held that both sets of statements were intended to enable police to meet an ongoing emergency and thus not “testimonial” under Davis v. Washington, 547 U.S. 813, 822 (2006). Slip op. ¶¶25-28.

The court also rejects Hunter’s claim he should get a new trial because the State violated the discovery statute, § 971.23(1)(d), by failing to disclose the witnesses who authenticated the 911 call. Assuming the State violated the statute, the violation was harmless because the witnesses’ testimony was limited to authenticating the 911 call, which Hunter knew was going to be used at trial. Slip op. ¶¶35-40.

Lastly, in a fact-specific discussion, the court concludes there was sufficient evidence to convict Hunter of possession of a firearm by a felon, § 941.29(2)(a), possession of a short-barreled shotgun, § 941.28(2), and intentionally pointing a firearm at another person, § 941.20(1)(c)Slip op. ¶¶29-34.

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