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State v. Bubar

Superior Court of Maine

July 7, 2018

STATE OF MAINE
v.
SCOTT BUBAR

          COMBINED ORDER ON MOTIONS

         Before 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.

         Motion in Limine

         The State is seeking admission of statements made by Ms. Shorey[1] 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.

         Under 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.

         Under 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 this issue.

         The 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.

         The Law 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.

         In 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."

         The 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 places moaning.

         The 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).

         The 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 Rule 803(3).
3) Statements of Ms. Shorey on page three are admissible under Rule 803(2). They are also admissible under either Rule ...

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