COMBINED ORDER ON MOTIONS
the Court are two motions, the State's Motion in Limine
to allow introduction of statements made by Jenny Shorey to a
911 operator, and Defendant's Motion to Suppress
statements made by the Defendant to law enforcement. Hearing
on the motions was held on August 16, 2018. The Court will
address each motion in turn.
State is seeking admission of statements made by Ms.
Shorey to a 911 operator on May 19, 2017. The
Court has reviewed the parties' filings, the testimony at
hearing, and has heard the recording made of these
statements. For reasons stated, the Motion in Limine is
granted in part. Some of the statements made are admissible
as statements of then-existing emotional, or physical
condition, some are admissible as present sense impressions,
and some are admissible as excited utterances.
MR. Evid. 803(3) a statement that is otherwise hearsay may be
admitted if it is a statement of the declarant's
then-existing emotional state of mind (such as motive,
intent, or plan) or emotional sensory or physical condition
(such as mental feeling, pain, or bodily health). The parties
seem to agree that some of Ms. Shorey's statements
qualify as exceptions under this Rule but did not specify in
the written filings which ones qualify or not.
M.R. Evid. 803(1) a statement that is otherwise hearsay may
be admitted if it is a "statement describing or
explaining an event or condition made while or immediately
after the declarant perceived it." Just as with respect
to the exception under Rule 803(3) the parties seem to agree
that some of Ms. Shorey's statements qualify as hearsay
exceptions but have not been specific in their filings on
parties' fundamental disagreement has to do with the
excited utterance exception under Me. R. Evid. 803(2). In
State v. Barnies, 680 A.2d 449 the Law Court set out
the findings a court must make in order to admit evidence
under the "excited utterance" exception of Me. R.
Evid. 803(2). The Law Court held that these findings were
preliminary questions for the trial court under Rule 104. In
order to determine if the exception applies to the statement,
the Court must find: (1) that a startling event occurred; (2)
that the hearsay statement related to the startling event;
and (3) that the hearsay statement was made while the
declarant was under the stress of the excitement caused by
the event." Id. at 451.
Court has also held that the stress of "conscience,
guilt or fear are not to be equated with the stress of
excitement." State v. Lafrance, 589 A.2d at 45.
It has also held that the statement must be "spontaneous
and unreflecting" and made "before there has been
time to contrive and misrepresent." Id.
State v. Ellis, 297 A.2d at 93 the Law Court stated
that under "certain external circumstances of physical
shock, a stress of nervous excitement may be produced which
stills the reflective faculties and removes their control, so
that the utterance which then occurs is a spontaneous and
sincere response to the actual sensations and perceptions
already produced by the external shock."
Court finds that the last shots fired in this incident
occurred around 1044 pm. The 911 statements by Ms. Shorey
were made approximately a half an hour later. Jenny Shorey is
a bed-ridden woman who was confined in this shooting incident
and "standoff" to her bed which was in the
trailer's living rooms. Her long-standing boyfriend and
his son, the Defendant, had been shot by law enforcement
officers and her boyfriend was killed. During the call, which
lasts approximately 21 minutes and 57 seconds, she tells the
911 operator that she is scared, that she wants the police to
"get here soon though" and she is heard at several
Court finds that many of her statements qualify as excited
utterances, and alternatively many of them qualify as
exceptions under Rule 801(1) and/or Rule 803(3). While Ms.
Shorey is not shouting into the phone it is clear to the
Court that she is terrified at the beginning of the interview
and still subject to the nervous excitement produced by the
exchange of gunfire between the police and the Defendant and
her father. She seems aware that her boyfriend is dead, that
the Defendant is seriously wounded, and she had almost been
hit by gunfire herself. Her physical inability to defend
herself or move away from the gunfire would obviously have
produced the kind of physical shock the exception
contemplates. However, it is also clear to the Court that at
some point in the interview the exchange between Ms. Shorey
and 911 operator becomes more conversational and the Court
finds that at that point the shock produced by the violence
she experienced had diminished sufficiently that the Court
cannot find her remaining statements qualify as exceptions to
hearsay rule. They may, however, be admissible still under
Rule 803(1) and/or Rule 803(3).
Court therefore concludes as follows:
1) Statements of Ms. Shorey on page one are admissible under
either Rule 803(2) or Rule 803(3).
2) Statements of Ms. Shorey on page two are admissible under
803(2). They are also admissible under either Rule 803(1) or
3) Statements of Ms. Shorey on page three are admissible
under Rule 803(2). They are also admissible under either Rule