(dissenting).
The majority writing finds that only one of State’s witnesses’ testimony falls under the “excited utterance” exception to the hearsay rule. I disagree.
In State v. Logue, 372 N.W.2d 151, 158 (S.D.1985), we quoted with approval from State v. Butt, 351 N.W.2d 731, 736 (S.D.1984):
Lack of capacity for fabrication rather than lack of time to fabricate is the justification for this rule, and there is no pat answer as to the length of time that elapsed between the event and the utterance. The character of the transaction or event will largely determine the significance of the time factor. ‘The crucial point is that the court must be able to find that the declarant’s state at the time [she] made the declaration ruled out the possibility of conscious reflection.’
Citing Weinstein’s Evidence § 803(2)[01] at 803-91 (1991).
Thus, while the amount of time which has elapsed between the event and the statement should be considered, it is not determinative. Logue, 372 N.W.2d at 159; State v. Percy, 80 S.D. 1, 7, 117 N.W.2d 99, 102 (1962). “Whether an utterance was made under the influence of the event must be determined on the basis of the circumstances in each case.” Id.
Here, we are presented with testimony from T.L.’s friends who she spoke with about the rape. T.L. spoke to Groseclose shortly after the rape. This testimony un-disputedly falls within the excited utterance exception. During this conversation, T.L. was still crying and shaking. T.L. fell asleep shortly thereafter, at approximately 3:00 a.m. She was awakened the next morning, at 9:00 a.m., by Phillips, who asked her why her clothes were dirty. T.L. responded “something bad happened.” T.L. then went home and went to bed. Feuerstein, who was staying with T.L. that weekend, testified that T.L. acted strangely when she came home. T.L. went directly to bed without speaking with Feuerstein. Later that morning, T.L. told Feuerstein that Devall had pushed her down and attacked her. That night at 5:30 p.m., T.L. explained to Feuerstein in detail what had happened to her. T.L. was shaking when she explained to Feuerstein what had happened.
In Bult, we held that a statement is admissible if the declarant is “under the stress of excitement.” 351 N.W.2d at 736. “[Tjhere are two aspects to this requirement: (1) the judge must find that because of the event the declarant was excited and (2) that [she] still was excited when [she] made the statement.” Id.
In my opinion, the testimony from Gro-seclose, Phillips, and Feuerstein all falls within the “excited utterance” exception. Considering the serious and emotional nature of the crime of rape, it certainly could be expected that someone would remain traumatized and under the “stress of the event” for several hours.
As to the other three witnesses, I believe their testimony was cumulative and thus constituted harmless error. This court expressed in State v. Younger, 453 N.W.2d 834, 839 (S.D.1990):
‘We also note that when evidence admitted at trial is cumulative only and other admissible evidence supports conviction, the cumulative evidence though inadmissible is not prejudicial.’
Quoting State v. Fender, 358 N.W.2d 248, 254 (S.D.1984).