FILED
United States Court of Appeals
Tenth Circuit
July 20, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-7043
DAVID BRIAN MAGNAN,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 6:13-CR-00069-RAW-1)
William P. Widell, Jr., Assistant Federal Public Defender (Julia L. O’Connell,
Federal Public Defender, and Chance Cammack, Assistant Federal Public
Defender, with him on the brief), Eastern District of Oklahoma, Muskogee,
Oklahoma, for Defendant-Appellant.
Richard A. Friedman, Appellate Section, Criminal Division, United States
Department of Justice, Washington, D.C. (Leslie R. Caldwell and Sung-Hee Suh,
Deputy Assistant Attorney Generals, United States Department of Justice,
Washington, D.C., and Mark F. Green, United States Attorney, and Linda Epperley,
Assistant United States Attorney, Eastern District of Oklahoma, Muskogee,
Oklahoma, with him on the brief), for Plaintiff-Appellee.
Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
The district court sentenced Defendant David Magnan, a Native American, to
life imprisonment times three after a jury convicted him of murdering Lucilla McGirt
and two others in Indian Country in violation of 18 U.S.C. § 1153. Defendant shot
McGirt twice and left her to die, paralyzed from the chest down, as part of an
execution-style slaying during which he shot four individuals. McGirt died, but not
before she identified Defendant as her assailant. On three separate occasions ranging
from approximately two to five hours after the shooting, first a police officer, then
an emergency medic, and finally McGirt’s sister, heard McGirt identify Defendant
as the man who shot her. At trial, these three individuals testified to McGirt’s
respective statements over Defendant’s hearsay objections. Defendant now appeals
his judgment of conviction. He asserts the district court abused its discretion in
ruling McGirt’s statements constituted excited utterances admissible under Rule
803(2) of the Federal Rules of Evidence. Our jurisdiction arises under 28 U.S.C.
§ 1291. We affirm. 1
I.
In the early morning hours of March 2, 2004, after a day of drinking,
Defendant Magnan, Aaron Wolf, and Aaron’s uncle, Redmond Wolf, Jr., drove to the
home of Jim Howard in rural Indian Country near Seminole, Oklahoma. Aaron’s .40
1
Because we conclude the district court did not abuse its discretion in
admitting McGirt’s statements as excited utterances under Rule 803(2), we have no
occasion to address whether such statements were also admissible, as the district
court held, under other exceptions to the rule against hearsay.
2
caliber semi-automatic handgun, loaded with hollow point bullets, was in the front
center console of Defendant’s vehicle. Defendant, a friend of Aaron and former
house guest of Howard now persona non grata, was driving. Shortly after midnight,
Aaron had phoned Howard’s residence and, though he later denied it, threatened to
kill Howard over an ongoing family dispute regarding Howard’s ownership of the
home. Howard had been married to Aaron’s aunt, Margie Wolf, and inherited the
property when she died. Apparently this did not sit well with some members of the
Wolf family, including Aaron. 2
Howard, Eric Coley, Lucilla McGirt, Karen Wolf, and Karen’s daughter, Amy
Harrison, were inside the residence as Defendant’s vehicle approached. Karen was
Margie and Redmond’s sister and Aaron’s aunt. Coley and McGirt, both friends of
Howard, were unrelated to the Wolfs. Howard and his guests had been celebrating
Coley’s birthday and drinking, at least since early evening. Coley and Harrison
heard the vehicle and went outside to meet it. Harrison greeted Redmond, her uncle,
and Aaron, her cousin. Meanwhile, Coley informed Defendant that he and his
friends were not welcome and should leave. The two men engaged in a scuffle.
Coley wrestled Defendant to the ground. Defendant pulled a gun and shot Coley in
the abdomen. Coley testified: “As [Defendant] was getting up, I seen him pull
2
Perhaps defense counsel accurately portrayed the Wolf family when during
closing arguments he described them as “insular,” “clannish,” “mean,” “violent,” and
“drunken.” Rec. vol. II, at 689. The record, by any reading, does not discount such
portrayal.
3
something out of his side and he shot me.” Rec. vol. II, at 126.
Coley “remember[s] looking down and seeing smoke coming out of my shirt.”
Id. Coley started to run. Despite a bad leg, Defendant briefly gave chase. Coley ran
into the nearby woods to hide, but not before banging on the windows of the house
to warn the others. Seconds later, Coley heard “around seven booms” or “shots”
come from inside the house. Id. at 130. Harrison initially ran into the woods but
then, in a panic, returned and sought cover around the house. Harrison heard “about
four” shots come from inside. Id. at 182–83. Aaron could not recall how many shots
he heard but remarked: “I know there was a lot.” Id. at 412.
After greeting Harrison, Redmond was returning to Defendant’s vehicle when
he heard a shot: “I seen David kind of leaning over . . . and I heard Eric Coley
grunting.” Id. at 250. As Coley fled, Redmond witnessed Defendant enter Howard’s
residence. Redmond heard what “[s]ounded like five” gunshots. Id. at 252–53.
Redmond then entered the house: “As I entered the house, I seen David Magnan
walking back and forth, he had a gun in his hand, and I looked on to my right side
and I seen my brother-in-law on the [sofa] bed there. . . . As I approached . . . his
bed, I just heard a gurgling sound that was coming out.” Id. at 253.
Aaron was outside with Redmond when they heard the gunshots. At no point
did Redmond see Aaron inside the house. Aaron stated he was preparing to go inside
and could see Howard on the sofa bed through the screen door when Defendant and
Redmond exited the residence. The three men promptly fled in Defendant’s vehicle.
4
As they sped off, Defendant threw gun magazines out of the vehicle. Three or four
miles later, Defendant turned onto a dirt road and stopped. He wiped the gun with
a towel, wrapped the gun in the towel, and instructed Aaron to hide the gun under
a pile of bricks off the side of the road. Aaron did so. A while later, Defendant
asked Aaron to call the police and report the gun stolen. Aaron refused. Redmond
led authorities to the gun the next day. Forensics subsequently established that
Aaron’s gun was, in all likelihood, the sole murder weapon. 3
After the three men fled, Coley met up with Harrison near the house. Coley
told Harrison he had been shot and was going in the house to have a look. Coley
first approached Howard and determined he was dead. He then went to check on
Karen Wolf and Lucilla McGirt in the bedroom. Karen was unresponsive and Lucilla
was “sitting against the wall, she was needing some water.” Id. at 133. After briefly
speaking to Lucilla, Coley tried to close the bedroom door but by this time Harrison
too had come inside to look. Harrison first shook Howard to see if he was awake.
“And I felt this jelly blood on my hand.” Id. at 184. After rinsing her hands,
Harrison went to check on her mother. “My mom was facing westward on the floor.
Lucilla was laying towards her, looking towards her. I rolled my mom over. I said,
‘Mom, Mom, are you awake?’ I rolled her over and seen blood coming out of her
3
At trial, Aaron Wolf acknowledged he had been convicted as an accessory
after the fact for hiding the gun. He was sentenced to five years in prison and five
years of supervision. He did not identify the jurisdiction that prosecuted him.
5
eyes, nose, and mouth.” Id. At this point, Harrison, in hysterics, ran to the kitchen
where she found Coley. Coley told Harrison to call for help just before he collapsed
on the kitchen floor. In a state of panic, Harrison called 911.
Officer Jack Thompson of the Seminole Police Department received a 911
dispatch around 2:44 a.m. informing him that four individuals had been shot at
Howard’s residence in a rural location. Thompson and two other officers arrived on
scene about 3:19 a.m. or shortly thereafter. Meanwhile, medic Anke Bernhardt
received an emergency call around 3:00 a.m. She arrived on the scene with other
medics about the same time as law enforcement. The medics waited outside about
twenty minutes while the officers secured the crime scene and made sure the medics
could safely enter the residence.
Thompson first encountered Coley in the kitchen: “There was a large male
subject laying on the floor and he was yelling and moaning that he had been shot in
the gut.” Id. at 292. Coley told Thompson “he thought he was going to bleed out.”
Id. Thompson next turned to Howard: “[I]t was very obvious he had been shot it
looked like twice. There was a lot of blood and I could tell he was dead . . . .” Id.
at 293–94. In the front bedroom, Thompson saw two female subjects lying on a floor
mattress. Thompson described the entire scene as “tense,” “[k]ind of like something
out of a movie.” Id. at 294–95.
The first lady I could tell was definitely dead . . . . Then the second
one, Ms. McGirt, was laying to her side and I wasn’t for sure with her
so I leaned over . . . the deceased lady . . . and I was shining my light
6
on her, . . . . And at that time she kind of moaned and moved just a
little and, . . . just reactions . . . I kind of drew my fist back, you know,
out of fear, . . . . I had just seen all these people had been shot . . . but
then I realized she’s the victim. At this time I tell the medics that this
one’s alive and then I kind of back off.
Id. at 295.
Thompson was in the bedroom when the medics began rendering aid to
McGirt. Due to poor lighting, Thompson assisted the medics by shining his
flashlight on their subject. McGirt was bleeding. Medics discovered a bullet wound
in the back of her right shoulder. Bernhardt observed that McGirt “appeared very
anxious. She was having trouble breathing. She looked very nervous and scared,
visibly.” Rec. vol. I, at 572. “Her vital signs were unstable and her skin was very
pale.” Id. at 573. “Her voice was shaky.” Id. She had difficulty communicating
“because she was short of breath.” Id. McGirt indicated she was in pain. “She was
unable to move any of her extremities or her body parts from the nipple line down.”
Id. McGirt smelled of alcohol but did not appear intoxicated. Medics placed an
occlusive dressing on McGirt’s shoulder wound and then applied a C-collar and
backboard to stabilize her. They provided her with oxygen and initiated two large
IVs, standard protocol for a trauma patient, keeping one IV wide open to stabilize
her blood pressure.
While Bernhardt administered first aid, another medic identified only as Amy
sought to calm and orient McGirt by speaking with her in the bedroom. At trial,
Officer Thompson, over Defendant’s hearsay objection, testified to their
7
conversation:
Q. And you said that [the medics] were trying to engage in
conversation with her as they were treating her . . . ?
A. Yes.
Q. Okay. And did you hear what she was asked and what her
response was to the questions the EMTs were asking her?
A. Yes.
Q. And can you please explain what you heard?
***
A. The medic had asked her who had shot her.
Q. What did she say?
A. She had said Dave Magnan or Magna. . . . I didn’t know if
it was ‘Magna’ or ‘Magnan’ but it was something like that.
Q. Were you able to understand that well enough to know it
was Dave Magna or Magnan?
A. Yes.
Q. Based on hearing that information, did you . . .
communicate this name to someone else . . . ?
A. I actually typed a report out on it and advised in that report
that that’s what she had said.
Rec. vol. II, at 298–99.
Around 3:45 a.m., medics moved McGirt from the house into a waiting
ambulance for transport to Seminole. Because McGirt’s condition remained
unstable, Bernhardt had decided to medevac her (as well as Coley) to the Oklahoma
University Medical Center in Oklahoma City. McGirt’s blood pressure remained
low, her pulse elevated, her strength weak, and her skin pale, the latter “an indicator
of shock.” Id. at 319. Bernhardt engaged McGirt in conversation inside the
ambulance. At trial, Bernhardt explained that “[i]t is standard protocol for us to
check someone’s mental capacity, ask them if they know who they are, where they
are, and what happened to them.” Id. at 320. When asked what McGirt told her
8
about what happened, Bernhardt replied, again over Defendant’s hearsay objection:
When I asked her what had happened, she stated that David “Montana”
Magnan had come to the residence yelling for someone named Amy.
She said that he then entered the residence, came into the room, shot the
woman next to her. She said that she had leaned over the bed to try and
help her and that’s when she was also shot.
Id. at 321. McGirt never suggested anyone other than herself, Karen Wolf, and
Defendant was in the bedroom when the shooting occurred.
McGirt’s sister, Carolyn West, lived in Seminole. West first learned from a
“relative” that her sister had been shot. West drove to Oklahoma City and arrived
at the hospital before daybreak, just a few hours after the shooting: “I don’t know
what time it was but it was still dark.” Id. at 610. West located McGirt in the
trauma section of the hospital’s emergency room. West noticed blood on her sister’s
pillow. “By her expression and the way her voice was,” West could tell her sister
was “scared, . . . she was like anxious . . . .” Id. at 610–11. West described
McGirt’s voice as “shaky and trembly.” Id. at 611. Over Defendant’s third hearsay
objection, West testified that without prompting her sister “started telling me what
had happened.” Id. at 610; see also Rec. vol. I, at 622-23.
A. She said that she was in there laying down and Karen came
in there and laid down too. She said she heard David and
Aaron, . . . she heard them yelling, calling Karen’s name
out and Amy’s name out. She said she heard some shots
and he came in there and shot Karen and shot her.
Q. Ma’am, did she say who it was that she saw shoot her?
A. She said “Montana” is what she called him.
9
Q. And have you come to learn that “Montana” is David
Magnan?
A. Yes.
Q. Did she seem at all confused about who it was that she saw
shoot her that day?
A. No.
***
Q. Did she say during that same conversation who shot Karen
Wolf?
A. She said the same person that shot her.
***
Q. And that would have been the one that she said was
“Montana”; correct?
A. Yeah.
***
Q. Did she say whether she heard his voice, “Montana’s”
voice, before she was shot?
A. Yes.
Rec. vol. II, at 612–13.
Nearly three weeks later, McGirt died of respiratory failure as a result of her
gunshot wounds. The autopsy report indicated McGirt had been shot twice, once in
the right shoulder area and once behind the right ear. The bullet that entered
McGirt’s shoulder lodged in her spinal cord and caused her paralysis. The report
further revealed that Jim Howard and Karen Wolf had died on the scene, both as a
result of multiple gunshot wounds. Coley testified that the gunshot he sustained
outside the house “hit my kidney, . . . punctured my lung, messed up my diaphragm,
cut my intestine in half, took out my spleen, and . . . broke a rib.” Id. at 137. Coley
recovered only after enduring several surgeries to repair his wounds.
***
10
Defendant was originally charged and convicted pursuant to a plea of guilty
in Oklahoma state court because prosecutors mistakenly believed Howard’s residence
where the murders occurred was located outside Indian Country. On federal habeas
review, we vacated Defendant’s convictions for want of state court subject matter
jurisdiction. Magnan v. Trammell, 719 F.3d 1159 (10th Cir. 2013). Defendant was
subsequently indicted in federal court. Prior to trial, Defendant filed motions in
limine to exclude from evidence McGirt’s statements identifying him as the gunman.4
The Government in turn moved, pursuant to numerous exceptions to the rule against
hearsay, for an evidentiary hearing to lay the foundations for the admission of
McGirt’s statements. Officer Thompson, Medic Bernhardt, and Carolyn West
testified at the hearing. These witnesses’ hearing testimony was substantially similar
to the testimony they rendered at trial. Following the hearing, the district court ruled
the three statements at issue were admissible into evidence as excited utterances. At
trial, the court overruled Defendant’s renewed hearsay objections. A jury found
Defendant guilty on three counts of murder in Indian Country and the court
sentenced Defendant to three consecutive life terms in prison. This appeal followed. 5
4
Defendant also moved to exclude the admissions of guilt he made during his
state court plea colloquy. The district court granted the motion and we affirmed on
interlocutory appeal. United States v. Magnan, 622 F. App’x 719 (10th Cir. 2015).
5
Defendant has never suggested that McGirt’s statements were testimonial.
Therefore, the question of the admissibility of McGirt’s statements does not
implicate the Sixth Amendment’s Confrontation Clause. See Michigan v. Bryant,
562 U.S. 344 (2011).
11
II.
Hearsay—an out-of-court statement offered to prove the truth of the matter
asserted—generally is thought unreliable and therefore inadmissible at trial. Rule
803(2) of the Federal Rules of Evidence, however, excepts “excited utterances” from
the rule against hearsay, regardless of whether the declarant is available for cross-
examination. The exception defines an excited utterance as “[a] statement relating
to a startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Fed. R. Evid. 803(2). The exception proceeds on the
theory “that circumstances may produce a condition of excitement which temporarily
stills the capacity for reflection and produces utterances free of conscious
fabrication.” Id. R. 803 advisory committee’s note. Whether the excited utterance
exception to the rule against hearsay applies under the particular circumstances of
a case is an inquiry committed to the sound discretion of the district court. United
States v. Smith, 606 F.3d 1270, 1279 (10th Cir. 2010). Because the inquiry is fact-
intensive, a district court’s decision to admit such testimony “necessitates heightened
deference.” Id. (quotation marks omitted).
The presence of three conditions are necessary before a statement may qualify
as an excited utterance. To qualify, the proponent must establish (1) a startling
event, (2) the declarant made the statement under the stress of the event’s
excitement, and (3) a nexus exists between the content of the statement and the
event. Id. In this case, Defendant acknowledges the Government has met the first
12
and third conditions for admissibility under Rule 803(2). Lucilla McGirt’s
statements identifying Defendant as the gunman directly related to the fact that she
had been shot twice and left to die, paralyzed from the chest down. And a nexus
undoubtedly existed between the content of McGirt’s statements, i.e., Defendant was
the gunman, and the startling event, i.e., she was shot. Defendant limits his
challenge on appeal to whether McGirt was still under the stress of excitement when
she made her statements identifying Defendant as her assailant. Whether the second
condition for an excited utterance is met requires a court to consider a range of
factors. These include (a) “the amount of time between the event and the statement,”
(b) “the nature of the event,” (c) “the subject matter of the statement,” (d) “the age
and condition of the declarant,” (e) “the presence or absence of self-interest,” and
(f) “whether the statement was volunteered or in response to questioning.” United
States v. Pursley, 577 F.3d 1204, 1220 (10th Cir. 2009).
Defendant first objects to Officer Thompson’s testimony that he heard McGirt
identify Defendant as the gunman while medics sought to stabilize her condition
inside the bedroom of Howard’s residence. Defendant points out that McGirt made
her initial statement about an hour and a half to two hours after the shooting in
response to a medic’s direct question about the shooter’s identity. But “[t]here is no
precise amount of time between the event and the statement beyond which that
statement cannot qualify as an excited utterance. Admissibility hinges on a
statement’s contemporaneousness with the excitement a startling event causes, not
13
the event itself.” Smith, 606 F.3d at 1279 (emphasis added) (brackets, citations, and
quotation marks omitted); see also Pursley, 577 F.3d at 1204 (citing cases upholding
application of the exception where two to four hours passed prior to the declarant’s
statement). Similarly, no categorical rule exists that a statement made in response
to a question falls outside the exception for excited utterances. United States v.
Frost, 684 F.3d 963, 974 (10th Cir. 2012), overruled in part on other grounds by
United States v. Bustamonte-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc). All
other things being equal, a declarant’s spontaneous statement surely is more likely
to qualify as an excited utterance than a statement in response to questioning. See
id. (“A spontaneous statement volunteered by the declarant is more likely to come
within the exception than a statement that is elicited by detailed police
questioning.”). In the end, however, the query we must answer in determining
whether a statement satisfies Rule 803(2)’s second condition is whether the statement
was the product of reflective thought or the stress of excitement caused by the
startling event. Pursley, 577 F.3d at 1220. Notably, “[i]f the declarant’s excitement
level is severe, then even statements made in response to questioning may be
admitted.” Frost, 684 F.3d at 974.
In this case, the district court did not abuse its discretion in holding that
McGirt’s first statement naming Defendant as her assailant was an excited utterance
within the meaning of Rule 803(2). Rather, the court acted well within its discretion
in concluding McGirt made this statement while suffering, apart from her physical
14
wounds, from the overwhelming stress of the shooting’s excitement. This is so
notwithstanding the fact that McGirt made her statement between ninety minutes and
two hours after the shooting in response to a medic’s direct question concerning the
shooter’s identity. The partly-paralyzed, bleeding victim of multiple gunshot
wounds, McGirt had witnessed both her own shooting and the shooting of Karen
Wolf at something close to point-blank range. That McGirt first heard the shots that
took the life of Howard and preceded Defendant’s entry into the bedroom is virtually
certain. When Officer Thompson encountered McGirt just a short time prior to her
statement, he witnessed her moaning and moving slightly—hardly an indication that
McGirt had been engaged in or was even able to engage in reflective or deliberative
thought. In naming Defendant as the gunman, McGirt most likely wanted to ensure
her safety. Medic Bernhardt observed that while in the bedroom, McGirt “appeared
very anxious,” “was having trouble breathing,” and “looked very nervous and scared,
visibly.” Rec. vol. I, at 572. “Her vital signs were unstable and her skin was very
pale.” Id. at 573. McGirt’s situation was, in a word, dire. We agree with the Eighth
Circuit that “[i]t would be unreasonable to conclude that someone recently suffering
multiple gunshot wounds and awaiting the arrival of paramedics is so nonchalant
about h[er] condition that [s]he is likely to calculate who [s]he might unfairly blame
for h[er] injuries.” United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir. 2006)
(observing that while the declarant was talking calmly on his cell phone, he had
suffered five gunshot wounds and lay bleeding on the ground).
15
Defendant effectively acknowledges that McGirt’s first statement likely was
not attributable to reflective thought or conscious fabrication. Defendant tells us “it
is illogical to conclude that a statement made by an intoxicated woman who has
likely been in and out of consciousness and suffering brain trauma could be
anywhere near the realm of accurate or trustworthy.” Appellant’s Br. at 20. Maybe
so. 6 But while the record establishes McGirt had been drinking, Bernhardt testified
she did not appear “drunk.” Rec. vol. I, at 578. Moreover, despite the extent and
severity of her traumatic injuries, nothing in the record indicates McGirt was “in and
out of consciousness,” or suffered brain damage. In ascertaining the primary purpose
of a victim’s statements in response to interrogation, i.e., in undertaking a
Confrontation Clause analysis, the Supreme Court has recognized, much like
Defendant does here, that “a severely injured victim may have no purpose at all in
answering questions posed; the answers may be simply reflexive,” and perhaps
inaccurate. Michigan v. Bryant, 562 U.S. 344, 369 (2011); see also supra n.5 But
the Supreme Court has also suggested, albeit in the same context, that where
conscious fabrication is unlikely due to the stress of excitement, the nature and
6
We are well aware that both courts and commentators have criticized the
excited utterance exception to the rule against hearsay “on the ground that
excitement impairs accuracy of observation as well as eliminating conscious
fabrication.” Fed. R. Evid. 803(2) advisory committee’s note. See, e.g., United
States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014); 2 McCormick on Evidence § 272,
at 366 (7th ed. 2013). But because Defendant does not ask us to hold the well
established exception invalid on its face, we consider his argument that the district
court abused its discretion in applying the exception only on the facts presented.
16
severity of a declarant’s wounds do not bear upon a statement’s admissibility, but
rather “weigh on the credibility and reliability” a jury could afford her statement.
Id. at 369 n.12.
Much the same analysis applies to Defendant’s hearsay objection to McGirt’s
second statement. Medic Bernhardt testified that once inside the ambulance, McGirt
again identified Defendant as her assailant. But this time, McGirt’s statement was
in response to the more general query “what happened.” Rec. vol. II, at 321.
Perhaps unlike a specific question under less than “dire” circumstances, “a general
question seeking the reaction of the speaker for what he had just experienced does
not by itself go far to displace the reactive force of a stimulus that has a great impact
on the speaker.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 8.68, at 591 (4th ed. 2013); see also Frost, 684 F.3d at 974 (“[E]ven if prompted
by questioning, a statement may be admissible if the questions are somewhat open-
ended.”). Moreover, given the traumatic event McGirt had experienced just two or
so hours prior, she surely remained “within the temporal range of trauma
contemplated by Rule 803(2).” Pursley, 577 F.3d at 1221. At this point, McGirt’s
vital signs remained unstable and she appeared to be approaching a state of shock.
She was strapped to a backboard, wearing a C-collar, and receiving fluids from two
IVs designed to sustain her blood pressure. Undoubtedly, McGirt “was still
languishing under the event’s agitation” when she made her second statement. Id.
One could reasonably conclude that McGirt’s situation remained dire. Because of
17
the wide variety of factual scenarios presented, “appellate courts have recognized
substantial discretion in trial courts to determine whether a declarant was still under
the influence of an exciting event at the time of an offered statement.” 2 McCormick
on Evidence § 272, at 372 (7th ed. 2013). Nothing in the record here warrants
disturbing the district court’s conclusion that McGirt made her second statement
identifying Defendant as the shooter while still under the stress of the horrific events
she had experienced just prior.
This brings us to the question of whether McGirt’s third statement may qualify
as an excited utterance. When McGirt made her third statement incriminating
Defendant, this time to her sister Carolyn West in the hospital’s emergency room,
as much as four to five hours had passed since the shootings. Defendant went on his
rampage, shooting McGirt and the others, sometime around 2:00 a.m. West testified
she arrived at the hospital in Oklahoma City to visit McGirt before sunrise. On
March 2, 2004, the day of the shootings, the sun rose in Oklahoma City at 6:57 a.m.
(available at https://www.timeanddate.com/sun/oklahoma-city?month=3&year =2004
(last visited June 22, 2017)). According to Defendant, by this point McGirt had time
to reflect and was no longer experiencing the stress of the shooting’s excitement. No
one disputes that the time element increasingly weighs in favor of Defendant’s
argument that McGirt’s statements fall outside Rule 802(3)’s exception for excited
utterances. But “[h]ow long can excitement prevail? Obviously there are no pat
answers and the character of the . . . . event will largely determine the significance
18
of the time factor.” Fed. R. Evid. 803 advisory committee’s notes. Time is but one
factor in our equation. McCormick on Evidence tells us:
A useful rule of thumb is that where the time interval between the event
and the statement is long enough to permit reflective thought, the
statement will be excluded in the absence of some proof that the
declarant did not in fact engage in a reflective thought process.
Testimony that the declarant still appeared “nervous” or “distraught”
and there was a reasonable basis for continuing emotional upset will
often suffice. The nature of the exciting event and the declarant’s
concern with it are obviously relevant.
McCormick on Evidence, supra at § 272, at 370.
Defendant asserts that once at the hospital, “McGirt has had ample time to
come down from the stress and excitement of the initial event and this is shown by
her improving condition and her expanding narrative on what actually occurred.”
Appellant’s Br. at 26. At the very least, however, reasonable minds could differ on
whether the passage of four to five hours was “ample time to come down from the
stress and excitement” of the unexpected execution style slaying and blood bath
McGirt had witnessed and been an innocent victim of. Given the horrific nature of
the circumstances McGirt personally encountered and her critical medical condition,
no one can doubt that she had “a reasonable basis for continuing emotional upset.”
In the trauma section of the emergency room, West saw blood on her sister’s pillow,
indicative of the upper body gunshot wounds McGirt had sustained. West described
her sister as “scared” and “anxious,” and her voice as “shaky and trembly.” Rec. vol.
II, at 610–11. Paralyzed from the breast down, McGirt could not help but be
19
preoccupied (perhaps an understatement) with her condition.
Importantly, McGirt’s third statement identifying Defendant as her then would
be assassin was entirely spontaneous. It was prompted not by any inquiry into what
had occurred, but by the appearance of her sister, undoubtedly an emotional moment
for McGirt. Moreover, McGirt’s statement to her sister as to the gunman’s identity
was consistent with her prior two statements, both of which were sufficiently
trustworthy to be admitted into evidence. Even four or five hours after the shootings,
nothing of an intervening nature apart from emergency medical assistance had
occurred that might have influenced or brought about McGirt’s statement to West.
Cf. Paxton v. Ward, 199 F.3d 1197, 1211 (10th Cir. 1999) (recognizing that “[a]ny
number of intervening events could have occurred that would have influenced or
indeed brought about the statement at issue”). And given the extent of McGirt’s
injuries—injuries that were to prove fatal—the rendering of such assistance surely
did little to dilute the effect of the recent event’s trauma. McGirt’s ongoing state of
distress as revealed by the record certainly might lead a reasonable person to
conclude that her spontaneous statement to West was a result of the stress of
excitement of the early morning’s event. Accordingly, the district court did not
abuse its discretion in holding McGirt’s third statement constituted an excited
utterance within the meaning of Rule 803(2).
***
The judgment of the district court is AFFIRMED.
20
No. 16-7043, United States v. Magnan
BRISCOE, Circuit Judge, concurring.
This case involves a lengthy trial transcript in which the testimony was extremely
unreliable and contradictory. In this case, we are fortunate that the conflicting testimony
is largely irrelevant to the question presented. Rather than venture into that bramble and
risk misstatements, I focus only on the circumstances surrounding the three statements
that McGirt made to Thompson, Bernhardt, and West and whether those statements were
admissible under an exception to the general rule against hearsay.
We review a district court’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Rutland, 705 F.3d 1238, 1245 (10th Cir. 2013). “Due to the
fact-specific nature of a hearsay inquiry, the district court’s ruling necessitates
‘heightened deference.’” United States v. Pursley, 577 F.3d 1204, 1220 (10th Cir. 2009)
(quoting United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir. 1998)).
Applying that standard, I agree that the three hearsay statements made by McGirt
identifying Magnan as the person who shot her are admissible as excited utterances.
Excited utterances provide an exception to the rule against hearsay and are admissible.
Fed. R. Evid. 803. An excited utterance is “[a] statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that it caused.”
Fed R. Evid. 803(2). Thus, this exception “has three requirements: (1) a startling event;
(2) the statement was made while the declarant was under the stress of the event’s
excitement; and (3) a nexus between the content of the statement and the event.” Pursley,
577 F.3d at 1220.
1. Thompson
Thompson’s testimony regarding McGirt’s statement is admissible as an excited
utterance. Magnan concedes that there had been a startling event and that McGirt’s
statement related to that event. Aplt. Br. at 17. He challenges only the district court’s
conclusion that McGirt was still under the excitement of the event when she made the
statement.
According to Thompson’s testimony, he arrived on the scene approximately thirty
minutes after the 911 call reporting the shooting. ROA vol. II, at 289. Coley was laying
on the kitchen floor, “yelling and moaning that he had been shot in the gut.” Id. at 292.
Thompson described the atmosphere inside the house as “tense” and “[k]ind of like
something out of a movie” because “it was dark,” and “all the lights from the police car
and ambulances were going and bouncing off the walls.” Id. at 294–95. Thompson
found McGirt in a bedroom, lying next to the body of Karen Wolf who was “definitely
dead at the time.” Id. Thompson testified that there was blood in the bed, that McGirt
had been shot in the shoulder, and that he thought she “was probably going to die there on
the scene.” Id. at 296. McGirt was able to speak but not move. Id. Thompson held his
flashlight up to assist the medics as they treated McGirt. Id. at 297.
According to Bernhardt’s testimony, regarding the same time frame, McGirt
“appeared to be extremely anxious” and Bernhardt “could tell that [McGirt] was in pain
by the look on her face.” Id. at 309. McGirt “was obviously having trouble breathing and
2
she was bleeding.” Id. at 310. “She was able to move her head and her upper extremities
but nothing from the middle of her chest down.” Id. “Her vital signs were unstable.” Id.
McGirt’s blood pressure was low so Bernhardt started two IVs, which is “standard
protocol for any trauma patient.” Id. at 316. McGirt was also given an oxygen mask. Id.
Thompson testified that, as the medics worked, McGirt identified Magnan as the
person who shot her. Id. at 299. The district court did not abuse its discretion in finding
that, under these circumstances, McGirt was still under the stress of having been shot
twice when she made this statement.
Magnan argues that McGirt’s statement cannot be an excited utterance because it
was offered in response to a medic’s question,1 but the spontaneity of the statement is
only one factor courts should consider. See Pursley, 577 F.3d at 1220–21. The fact that
McGirt was responding to a question does not outweigh the fact that she was still at the
scene, gravely injured, and surrounded by emergency responders. The amount of time
between the event and the statement, the nature of the event; the subject matter of the
statement, the condition of the declarant; and the absence of self-interest all indicate that
this was an excited utterance. See id.
Magnan also argues that McGirt’s statement cannot be an excited utterance
because her “condition was undeniably grave” and “she was likely drunk.” Although
these factors could impact the reliability of the statement (and were appropriately raised
1
Responses to questions asked by police officers may be subject to more scrutiny,
see Frost, 684 F.3d at 974, but the questions here were asked by a medic.
3
on cross-examination), the appropriate weight to afford a witness’s testimony is for the
jury to decide; these questions of reliability do not undercut the district court’s conclusion
that McGirt’s statement was an excited utterance. See Michigan v. Bryant, 562 U.S. 344,
369 n.12 (2011) (recognizing that juries must determine the reliability of testimony and
noting that the excited utterance exception to the rule against hearsay remains widely
supported in spite of criticism that “excitement impairs [the] accuracy of observation as
well as eliminating conscious fabrication” (quoting Advisory Committee’s Notes on Fed.
Rule Evid. 803(2))). In fact, McGirt’s “grave” condition strengthens the argument that
she was still under the stress of being shot.
Finally, Magnan argues that McGirt was shot in the back of the head and that the
house was dark, so there is no evidence that she saw the shooter. I cannot find any place
in the record where this was argued to the district court, and Magnan makes no attempt to
argue that it was plain error. See United States v. Faust, 795 F.3d 1243, 1251 (10th Cir.
2015). Further, the testimony of Bernhardt and West indicates that McGirt heard Magnan
when he entered the house and saw him when he shot Karen. ROA vol. II, at 321,
612–14.
2. Bernhardt
For the same reasons, Bernhardt’s testimony regarding McGirt’s statement is also
admissible as an excited utterance. Bernhardt testified that McGirt was transported to the
hospital by ambulance and then by helicopter. Id. at 317, 322. While in the ambulance,
McGirt was unstable, had low blood pressure, had an elevated pulse, was weak, was pale,
4
and was in shock, indicating that her body was shutting down in response to trauma. Id.
at 319. Bernhardt testified that she did not expect McGirt to survive. Id. at 322. It was
during this ambulance ride that McGirt again identified Magnan as the person who shot
her. Id. at 321. Again, the district court did not abuse its discretion in finding that, under
these circumstances, McGirt was still under the stress of having been shot twice when she
made this statement.
Magnan argues that any stress McGirt was under at the time of this statement was
caused by the work of the medics, not by the event of being shot. Aplt. Br. at 23. This
argument is specious. The medics were present only because McGirt had been shot twice
and was gravely injured. Further, Magnan openly admits that “McGirt’s condition ha[d]
not dramatically improved.” Id.
Magnan also argues that too much time had passed since the startling event, and
that McGirt’s statement was not spontaneous, but in response to a question. Id. at 23–24.
Again, we must consider all the factors together. See Pursley, 577 F.3d at 1220–21. The
facts that McGirt responded to a question and that approximately two hours had passed
since she was shot, do not outweigh the facts that she was in an ambulance on her way to
a helicopter transport to the hospital, her body was shutting down due to trauma, and
medics were working continuously to keep her alive. The nature of the event; the subject
matter of the statement, the condition of the declarant; and the absence of self-interest all
indicate that this was an excited utterance. See id.
5
3. West
The district court also did not abuse its discretion in allowing West’s testimony
regarding McGirt’s statements in the hospital. Magnan again concedes that there had
been a startling event and that McGirt’s statement related to that event, but argues that too
much time had passed since that event and that McGirt had had an opportunity to reflect.
Aplt. Br. at 25–26.
If we were to review the admissibility of this testimony de novo, I might reach a
different conclusion, but, given the fact-intensive nature of applying hearsay exceptions,
the district court’s determination was not unreasonable. According to the testimony of
West, she arrived at the hospital the morning after the shooting while it was still dark. Id.
at 609. When she arrived, McGirt was in the ER trauma center. Id. at 610. West
described McGirt as “scared” and “anxious.” Id. She testified that McGirt’s voice was
“shaky and trembly.” Id. at 611. McGirt told West “that she was paralyzed from the
breast down.” Id. While West was with McGirt, she noticed blood on McGirt’s pillow.
Id. at 612. The doctor then came in, “checked it out,” and said “that it was a bullet
wound,” apparently one previously unnoticed. Id. It was then that McGirt for a third
time identified Magnan as the person who shot her. Id. at 612–14.
In particular, the fact that the doctor discovered an additional bullet wound during
this conversation indicates that McGirt’s condition was so unstable that the doctors had
not yet ascertained the full extent of her injuries, and also that McGirt was still learning
new information about the severity of her condition. It is hard to say that McGirt was no
6
longer under the stress of the event of being shot when her doctor was still in the process
of assessing her very serious injuries. Given the gravity of McGirt’s condition and the
testimony regarding her emotional state at the time of her statements to West, the district
court did not abuse its discretion by concluding that McGirt was still under the stress of
being shot just hours before.
7