United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Pending before the Court are the Motion in Limine (Docs. 102) filed by the government and the Motions in Limine (Docs. 88 and 103) filed by Defendant Shawn Miguel ("Miguel"). Responses have been filed as to these motions (Docs. 107, 110, and 111). Counsel presented oral argument to the Court on February 9, 2015. Additionally, Miguel has filed a Notice of Disclosure of Witness Pursuant to FRE 404(a) and (b) (Doc. 108). During the February 11, 2015 hearing, the Court stated it would address issues of the 404(a) witness and disclosure of the agent's personnel records.
I. Motion in Limine (Doc. 88)
Miguel seeks to preclude evidence that passenger Amon Chavez ("Chavez") told Daniel Bonner ("Bonner"), a nurse at University Medical Center, that Miguel had said it would be fun to ram the agent. Chavez, later that day and since then, has denied making the statement. Miguel argues why this statement does not qualify as an exception to a number of possible hearsay exceptions.
A. Excited Utterance
The excited utterance exception allows a court to admit 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 "excited-utterance 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." United States v. Pursley, 577 F.3d 1204, 1220 (2009). Other factors, including age of declarant, characteristics of event, and subject matter of the statements may suggest a declarant is still under the stress or excitement of the event. United States v. Rivera, 43 F.3d 1291 (9th Cir. 1996). There is no bright-line rule as to when a lapse of time is too great to qualify as an excited utterance. United States v. Green, 556 F.3d 151, 156-57 (3rd Cir. 2009). Courts have recognized a greater length of time before an excited utterance is permissible as compared to a present sense impression. Torres v. City of Santa Clara, No. 5:13-cv-01475-PSG, 2014 WL 4145509 *3 n. 20 (N.D.Cal. 2014).
In this case, startling events occurred: driving off the road, contact between the vehicles, and the shooting of Miguel and Chavez by Border Patrol Agent Spann ("Spann"). Although the time span between these incidents and the alleged statement to Bonner has not been established, there could not have been more than seven hours and 47 minutes between the events and the alleged statement - the events occurred no earlier than 9:00 p.m. on March 30, 2014 and Special Agent Michelle L. Terwilliger spoke with the nurse at 4:47 a.m. on March 31, 2014. See Doc. 88, Ex. C. The time between the events and the statement were involved with arranging for and transporting Chavez by helicopter to the University of Arizona Medical Center. In other words, the startling events were ongoing. Moreover, there is a nexus between the content of the statement and the events. The Court finds Chavez' statement was an excited utterance.
B. Statement Made for Medical Diagnosis or Treatment
"A statement that: (A) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause" is "not excluded by the rule against hearsay[.]" Fed.R.Evid. 803(4). Rule 803(4) allows a person to whom an out-of-court assertion describing medical history, or past or present symptoms or sensations for the purpose of medical diagnosis or treatment, to testify as to the substance of the assertion. The exception is based upon the view that "a statement made in the course of procuring medical services, when the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility...." White v. Illinois, 502 U.S. 346, 356 (1992).
The information was reasonably pertinent to diagnosis or treatment - Chavez could have just said he was shot, but the added details let the nurse (and other medical personnel) know that bullets may have traveled through a vehicle frame or window and the details of how the incident happened let the nurse know that the vehicle was relatively close to the shooter. The Court finds this statement qualifies as a statement made for medical diagnosis or treatment.
C. Reliability of Statement
The defense argues, however, that the statement is not reliable. The defense asserts that Chavez was in no condition to make the statement. The defense notes Chavez had received a Fentanyl injection and Versed. Further, the medical record states the "[p]atient intoxicated and unreliable and does not readily answer questions." Motion Doc.88, p. 3 (citing Ex. D). The language of the quote indicates that Chavez was answering questions, just not readily. Additionally, the medical records indicate Chavez did not lose consciousness prior to the arrival at the hospital (indeed, he was awake enough to complain of left back pain).
That Chavez was intoxicated, unreliable as stated in a medical report, and presumably under the influence of narcotics does not alter the conclusion that Chavez's statement qualifies under the hearsay exceptions. The statement has adequate indicia of reliability. The circumstances surrounding the statement address how much weight a trier of fact should attribute to the statement rather than its admissibility.
D. Admissibility of Statement
The statement alleged to have been made by Miguel, within the hearing of Chavez, while in the vehicle is a statement by a party-opponent and is not hearsay. See Fed.R.Evid. 801(c)(2). The government will be permitted to question Chavez during cross-examination as to the making of this alleged statement. Further, the statement by Chavez to the nurse qualifies under the excited utterance and medical diagnosis or treatment exceptions. Fed.R.Evid. 803(2) and (4). If Bonner testifies at trial, the statement is not precluded as hearsay. The Court will deny the Motion.
II. Motions in Limine Re: Other Acts (Docs. 102, 103)
The defense seeks to admit evidence of other acts alleged to have been committed by Agent Joseph Spann ("Spann"):
Aggravated Assault with a deadly weapon on an unarmed pedestrian in a parking lot; alleged ...