Body Camera Belies Claim that Witness Statement was "Excited Utterance"

State v. Plevell, Minn.Ct.App., 1/3/2017.  The state charged Mr. Plevel by indictment with first degree premeditated murder for the shooting death of his x-girlfriend.  Mr. Plevel moved to dismiss the indictment, arguing, among other things, that the evidence presented to the grand jury was insufficient to support the charge. Specifically, Mr. Plevell focused on an officer's summary to the grand jury of statements of witnesses who did not testify at the grand jury.  He also said that a summary of a statement of the deceased's current boyfriend - who was standing right next to the x when the shooting occurred - was also improperly admitted during the grand jury hearing.

Mr. Plevell said Rule 18.05, subd. 1 requires that an indictment be based on evidence that would be admissible at trial.  He's correct. The officer's summary to the grand jury of witness statements was, he said, again correctly, was hearsay not admissible under any exception to the exclusion of hearsay and not authorized by the rules that govern grand jury proceedings.  The grand jury rules permit receipt of hearsay testimony about documents, etc., but that rule does not cover "documents" that merely summarize what witness said.  So, the officer's summary of those statements would be error unless the statements thus summarized would be admissible at trial.

The state said that the summary of the statements of the witnesses who did not testify to the grand jury would be admissible at trial as prior consistent statements.  The court of appeals essentially responds by saying that, well, that may be, but at this point that's totally speculative. The state simply can't show that it can satisfy the evidentiary requirements under Evidence Rule 801(d)(1)(B):

A statement properly admitted under rule 801(d)(1)(B) operates as substantive evidence. See Minn. R. Evid. 801(d)(1) comm. cmt. But rule 801(d)(1)(B) has been interpreted as requiring the district court to make a threshold determination of whether there has been a challenge to the witness’s credibility before the prior statement will be admitted. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000) (citing State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997)), review denied (Minn. Feb. 24, 2000). The district court must also determine whether the statement would be helpful in evaluating credibility. Id. at 109. “[A] prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.” Id. Finally, the prior statement and the trial testimony must be consistent. Id.

As to the summary of the current boyfriend's statement, the state said that it was an excited utterance.  However, the body camera footage of the statements belied the claim that the boyfriend was excited - about anything:

The current boyfriend was standing next to the woman when she was shot and some of his statements relate to that startling event, but in all of the body camera videos, the boyfriend does not appear to be under stress caused by the event. Cf. State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (stating hearsay statement was admissible as excited utterance where declarant’s condition, “extremely agitated, upset, and afraid,” indicated she was still under stress caused by the event at the time the statement was made). Because the boyfriend’s statements do not appear to have been made while he was under the stress of the event, the state has not shown that the statements will be admissible at trial under the excited utterance exception. 

Despite these errors the court concludes, nonetheless, that the state did present sufficient evidence to support the indictment.