Eighth Circuit Affirms Assault Conviction Over a Host of Hearsay Objections

In United States v. Earth, No. 19-1555 (8th Cir. Jan. 11, 2021), the Eighth Circuit upholds a conviction for assault on the Rosebud Indian Reservation, overruling several hearsay objections including comments made for medical treatment and “excited utterances.”

Defendant Earth was charged with stabbing a cousin during a domestic dispute. “At trial, the defense conceded that Earth stabbed Sharpe Butte but argued that she did so in self-defense.” The jury convicted Earth of assault with a dangerous weapon.

The Eighth Circuit affirms the conviction, reviewing and affirming several evidentiary rulings.

“First, Earth argues the court erred by allowing a 911 dispatcher and [scene] Officer Roe to testify about [the defendant’s aunt] Rebecca Sharpe Butte’s statements … [T]he district court admitted testimony about, and a recording of, Rebecca stating that ‘[Earth] stabbed [Sharpe Butte]’ and ‘those girls are gone, but we’re trying to see where they’re running.’ The district court also admitted testimony about Rebecca stating to Officer Roe: ‘She is running, though.’”

The panel affirms that the evidence was admissible for the non-hearsay purposes of establishing the effect of the statements “on the listeners and to introduce the origins of the investigation. Because the government did not introduce her statements to prove the truth of the matters asserted, the statements were not hearsay and were properly admitted into evidence. See Fed. R. Evid. 801(c).”

“Next, Earth argues the court erred by allowing … [emergency medical technician] O’Brien and [treating] Dr. Lozano to testify about statements Sharpe Butte made during his medical treatment. EMT O’Brien testified that, after she moved Sharpe Butte to the ambulance, she asked him if he had been drinking and he said, ‘Yes. Lots. All day.’ EMT O’Brien also testified that she asked Sharpe Butte what happened and he said that he had been sleeping and, when he woke, ‘the bitch was stabbing me’ … The doctor testified that Sharpe Butte explained the source of his injuries by stating ‘he was caught by surprise’ and ‘got cut with a knife.’ Later, when asked by the government about Sharpe Butte’s ‘attitude or demeanor about what happened,’ Dr. Lozano testified that Sharpe Butte ‘was surprised at the attack’ and kept saying something like ‘[y]ou’ve got to be kidding me.’”

All of the above comments came in at trial under Fed. R. Civ. P 803(4) as “made for—and … reasonably pertinent to—medical diagnosis or treatment.” The comments about drinking alcohol all day’ and being stabbed fell directly into the exemption. “Earth argues Sharpe Butte’s statements were not ‘reasonably pertinent’ to diagnosis or treatment because, by describing the stabbing as surprising, Sharpe Butte’s statements assigned fault. We disagree. When asked about the cause of his injuries, Sharpe Butte made brief statements to the medical professionals who were treating him for traumatic injuries … [T]here is no question these statements were made for any other reason than ‘medical diagnosis or treatment.’ Fed. R. Evid. 803(4)(A).”

“Lastly, Earth argues the district court erred by admitting Sharpe Butte’s statements captured on (1) Officer Roe’s body camera while at Rebecca’s house, and (2) Officer James Scott’s body camera while at the hospital. In both instances, the government offered the body camera footage into evidence over Earth’s objection that the footage contained hearsay and improper bolstering.” While casting doubt on the factual value of these “problematic” statements, the Eighth Circuit upholds admission of the statements as excited utterances under Fed. R. Evid. 803(2). “Sharpe Butte made these statements soon after he was stabbed four times and before he had received any medical treatment. Given their proximity to the stabbing and the subject matter of the statements, the district court did not abuse its discretion in admitting these statements as captured on Officer Roe’s body camera, under Rule 803(2).”

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