Opinion
1:19-CR-00155 EAW
2022-11-22
UNITED STATES of America, v. Deandre WILSON, Defendant.
Brendan T. Cullinane, Michael Jason Adler, Government Attorney, Joseph M. Tripi, Maeve Eileen Huggins, United States Attorney's Office, Buffalo, NY, for United States of America. Daniel J. Henry, Jr., Villarini & Henry, L.L.P., Hamburg, NY, Kevin W. Spitler, Buffalo, NY, for Defendant.
Brendan T. Cullinane, Michael Jason Adler, Government Attorney, Joseph M. Tripi, Maeve Eileen Huggins, United States Attorney's Office, Buffalo, NY, for United States of America. Daniel J. Henry, Jr., Villarini & Henry, L.L.P., Hamburg, NY, Kevin W. Spitler, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Prior to the trial in the above-captioned matter, the government filed a motion in limine to allow the admission into evidence of a video recorded statement made by the minor victim N.V.C., which occurred at the Child Advocacy Center located in Buffalo, New York, on September 16, 2019. (Dkt. 431 at 53-55 (Notice of Intent to Introduce Evidence Pursuant to Fed. R. Evid. 807); Dkt. 444 (Supplemental Motion in Limine); Dkt. 458 (Amended Supplemental Motion in Limine)). At the final pretrial conference on September 20, 2022, the Court ruled it would grant the government's motion to admit N.V.C.'s recorded statement as an excited utterance under Federal Rule of Evidence 803(2) and issue a written decision further explaining its reasoning. This Decision and Order memorializes that ruling.
Although N.V.C.'s name was used in open court during the trial of this matter, to protect the minor's privacy this Decision and Order will utilize his initials. See Fed. R. Civ. P. 5.2(a)(3).
BACKGROUND
The summary of the factual background is based on the proffer by the government in support of its motion, which was borne out by the trial testimony. Since most of the trial transcripts have not been prepared, the summary herein is based on the undersigned's notes and recollection of the trial testimony. Of note, this Decision and Order does not refer to the charges against Defendant as allegations because he has now been convicted by a jury.
At approximately 8:00 a.m. on September 16, 2019, lifelong Buffalo resident Lois Augsburger ("Augsburger") exited her home at 63 Potomac Avenue in her flannel nightgown to retrieve the morning newspaper from her mailbox. A little boy clothed only in a diaper suddenly crawled out of a cardboard box that Augsburger kept on her front porch for stray cats. Augsburger did not know the little boy, nor did she recognize him. She picked up the little boy, who hung onto her "for dear life," and went to her neighbor's house where they called the police.
The little boy was later identified as three-year old N.V.C., and the traumatic events that he had experienced before being discovered by Augsburger were like scenes from a horror movie. N.V.C. had travelled by minivan from Florida to Buffalo with his parents, Miguel Anthony Valentin-Colon ("Miguel") and Nicole Marie Merced-Plaud ("Nicole"), along with his aunt's partner, Dhamyl Roman-Audiffred ("Dhamyl"). Miguel, Nicole, and Dhamyl were drug dealers.
At approximately 6:00 p.m. on September 15, 2019, Miguel drove the minivan with Nicole, Dhamyl, and N.V.C. as passengers, to a house at 4 Roebling Avenue on the East Side of the City of Buffalo ("4 Roebling"). Dhamyl went inside 4 Roebling to sell a kilogram of cocaine to co-defendant Jariel Cobb ("Cobb"). Miguel, Nicole, and N.V.C. remained in the minivan parked in the driveway. Defendant Deandre Wilson ("Wilson" or "Defendant") was also present inside 4 Roebling, intending to participate in the drug deal. Cobb's brother and co-defendant James Reed ("Reed") was also there to "count money."
During the drug transaction, Wilson killed Dhamyl. He immediately exited 4 Roebling and shot and killed Miguel and Nicole as they sat in the minivan with N.V.C. Wilson then drove the minivan to an isolated location at or near 338 Scajaquada Street, where at 6:30 p.m., he left N.V.C. in the minivan with his parents' dead bodies. Approximately eight hours later, at about 2:35 a.m. on September 16, 2019, Wilson returned with Cobb to retrieve the minivan, and with N.V.C. and his parents' dead bodies still in the minivan, Wilson drove across the City of Buffalo to the rear of 111 Tonawanda Street, with Cobb driving to the same location in his red Kia sedan.
At approximately 3:00 a.m. and in N.V.C.'s presence, Cobb and Wilson doused the minivan with gasoline and lit it on fire. N.V.C. was removed from the minivan before it was torched, but Miguel and Nicole's dead bodies remained inside. Cobb and Wilson, with N.V.C., then drove away from 111 Tonawanda. After stripping N.V.C. of his clothes, and washing him with water and dish soap, N.V.C. was abandoned on the porch of Augsburger's home at 63 Potomac Avenue.
At approximately 3:44 p.m. on September 16, 2019—in other words, less than eight hours after he was discovered by Augsburger—a senior case worker at the Child Advocacy Center named Ashley Kujawa ("Kujawa") interviewed N.V.C. The video recorded interview lasted approximately 20 minutes. Kujawa is not employed by law enforcement, and no law enforcement personnel were present.
Kujawa is employed by the Erie County Department of Social Services.
Almost one year after these events—on August 26, 2020—a grand jury returned a 24-count second superseding indictment charging Wilson, Cobb, and Reed, with various crimes related to the murders of Miguel, Nicole, and Dhamyl and the subsequent cover-up and destruction of evidence, as well as related drug trafficking and firearms offenses. (Dkt. 106). On November 3, 2022, a jury returned a verdict finding Defendant guilty on 15 of the 17 counts with which he was charged, including the offenses related to the murders of Miguel, Nicole, and Dhamyl and the destruction of evidence concerning those murders. (See Dkt. 556).
Other co-defendants were also charged in the second superseding indictment with crimes unrelated to the murders and destruction of evidence. Prior to trial, all defendants except for Wilson pleaded guilty, including Cobb and Reed who testified against him at trial pursuant to cooperation agreements entered into with the government.
On August 25, 2022, as part of its pretrial filings, the government filed a motion in limine arguing that the video recorded statement of N.V.C. was admissible as an "excited utterance" under Rule 803(2) of the Federal Rules of Evidence. (Dkt. 444). In support of its motion, the government submitted N.V.C.'s video recorded statement marked as Government Trial Exhibit 98A. On August 25, 2022, Defendant filed a response, arguing that the video recorded statement was not admissible under Rule 803(2), and further objecting on the grounds of relevance. (Dkt. 527).
In its pretrial memorandum, the government originally argued that the video recorded statement was admissible under Federal Rule of Evidence 807. (Dkt. 431 at 53-55). The Court ultimately did not resolve that issue because of its finding that the interview was admissible as an excited utterance under Rule 803(2).
At the pretrial conference on August 29, 2022 (see Dkt. 451), the Court addressed the government's motion to admit N.V.C.'s video recorded statement and requested supplemental briefing on whether it raised any issues concerning Defendant's Sixth Amendment rights under the Confrontation Clause, as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). (See Dkt. 452).
The government filed its supplemental submission on September 6, 2022 (Dkt. 458), and Defendant responded on September 12, 2022 (Dkt. 461). The Court heard further argument on September 20, 2022, after which it ruled that the video recorded statement was non-testimonial and therefore did not violate Defendant's rights under the Confrontation Clause, and further that it was admissible as an excited utterance pursuant to Rule 803(2).
DISCUSSION
In support of its motion to admit the video recorded statement, the government argued that the "prolonged series of traumatic and startling events" preceding N.V.C.'s video recorded statement satisfied the requirements for the "excited utterance" exception to the rule against hearsay. (See Dkt. 444; Dkt. 458). In addition, the government contended that the statement was not testimonial in nature and did not violate the Confrontation Clause, including because N.V.C. was only three years old when he made the statement in question, and his statement was not intended to establish or prove past events for purposes of a later criminal prosecution. (Dkt. 458 at 14-21).
Defendant responded that N.V.C.'s video recorded statement did not rise to the level of a hearsay exception under Rule 803(2), including because the interview occurred seven to eight hours after "experiencing the situation involving his parents," and also because N.V.C. does not appear to be "excited, agitated, stressed, or hyped" in the video but instead appears "very disinterested" in the questioning. (Dkt. 527 at 3-5). Further, Defendant argued that admission of the video recorded statement violated the Confrontation Clause because there was no ongoing emergency, and because N.V.C.'s statements to Kujawa were potentially relevant to a later criminal prosecution. (Dkt. 461).
Defendant also argued that N.V.C.'s video recorded statement was not relevant, it was cumulative, and it constituted unfairly prejudicial evidence. (Dkt. 527 at 6-7). The Court rejected this argument. N.V.C. was the only living witness (other than Wilson, Reed, and Cobb) to the homicides, and his statement as to what occurred was plainly relevant to the issues central to the trial—i.e., the homicides and subsequent destruction of evidence. Moreover, as opposed to being cumulative, N.V.C.'s statement was corroborating of the other evidence in the case, and while prejudicial because of its probative value and the nature of the statement (i.e., a three-year-old boy describing his parents' murders and the burning of their bodies), it was not unfairly prejudicial.
I. Crawford v. Washington and the Confrontation Clause
Given that it raised a constitutional issue and, if decided in Defendant's favor, would render the video recorded statement inadmissible even if it constituted a hearsay exception under Rule 803(2), the Court turned first to Confrontation Clause issue. See, e.g., United States v. Bowen, 511 F. Supp. 3d 441, 448 (S.D.N.Y. 2021) (even "[s]tatements that fall under an established hearsay exception are nonetheless inadmissible if they violate the Confrontation Clause," and "[s]tatements solicited through interrogations by law enforcement for the sole purpose of establishing facts of a past crime in order to identify or convict the perpetrator are considered testimonial." (citing Crawford, 541 U.S. at 56, 124 S.Ct. 1354 (2004) and Davis v. Washington, 547 U.S. 813, 826, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).
The Confrontation Clause, which is contained in the Sixth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend. VI. In Crawford v. Washington, the Supreme Court held that an out-of-court statement by a witness that is "testimonial" is barred under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statement is deemed reliable by the court. 541 U.S. at 68-69, 124 S.Ct. 1354 ("Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."). Accordingly, in considering a Confrontation Clause challenge, the threshold question is whether the out-of-court statement is "testimonial" or "non-testimonial."
In determining whether a statement is "testimonial," the Supreme Court has instructed that courts employ the "primary purpose" test. That test instructs:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.Davis, 547 U.S. at 822, 126 S.Ct. 2266. The Supreme Court has also said that, in considering whether a statement is "testimonial," courts should consider "all of the relevant circumstances," further clarifying that "whether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." Michigan v. Bryant, 562 U.S. 344, 366, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). Other factors to be considered include whether law enforcement is present, as well as "the informality of the situation and the interrogation," including that a " 'formal station-house interrogation,' . . . is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused." Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) (citations omitted). Moreover, while the Supreme Court has declined to adopt a categorical rule excluding "from the Sixth Amendment's reach" statements to individuals who are not law enforcement officers, it has cautioned that "such statements are much less likely to be testimonial than statements to law enforcement officers." Id. at 246, 135 S.Ct. 2173.
Further, the Supreme Court has said that "[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause," because "[f]ew preschool students understand the details of our criminal justice system" and thus "it is extremely unlikely that a 3-year-old child . . . would intend his statements to be a substitute for trial testimony." Id. at 247-48, 135 S.Ct. 2173; see also United States v. Barker, 820 F.3d 167, 171 (5th Cir. 2016) ("Because preschool children generally lack an understanding of our criminal justice system, let alone the nuances of a prosecution, it is highly unlikely that a child intends his or her statements to substitute for trial testimony."). "In the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'create an out-of-court substitute for trial testimony.' " Clark, 576 U.S. at 245, 135 S.Ct. 2173 (citation and alteration omitted).
Considering all the relevant circumstances, the Court concluded that N.V.C.'s video recorded statement is non-testimonial. The Court first notes that N.V.C. was three years old at the time of the events in question—in other words, pre-school aged—and as the Supreme Court has acknowledged, it is highly unlikely that a child of this age would understand that his statements could be used in a subsequent criminal prosecution. See, e.g., Clark, 576 U.S. at 247-48, 135 S.Ct. 2173; Barker, 820 F.3d at 171; see also United States v. Norwood, 982 F.3d 1032, 1049 (7th Cir. 2020) ("The victim characteristic that has most frequently impacted a court's primary purpose test inquiry is the victim's age . . . . [A] very young child will rarely make statements for the primary purpose of creating an out-of-court substitute for testimony; they are typically incapable of forming that purpose."); Duhs v. Capra, 639 F. App'x 691, 692 (2d Cir. 2016) (rejecting habeas petition and finding that state courts did not unreasonably apply governing Supreme Court precedents in holding that the admission of a statement made by three-year-old child to a treating physician did not violate the defendant's rights under the Confrontation Clause).
The Court has also considered the circumstances of N.V.C.'s video recorded statement. N.V.C. did not make the statement to a law enforcement officer, nor did he make the statement at a police station. In fact, law enforcement were not even present when the statement was made, nor did they accompany N.V.C. to the Child Advocacy Center. Rather, N.V.C. made his statement to Kujawa in a child-friendly interview room at the Child Advocacy Center, which looked like a regular home from the outside. (See Dkt. 458 at 6). These factors support the conclusion that N.V.C.'s video recorded statement is non-testimonial. See Clark, 576 U.S. at 245, 135 S.Ct. 2173; cf. Bobadilla v. Carlson, 575 F.3d 785, 793 (8th Cir. 2009) (concluding that child victim's statements to social worker were testimonial, including because the interview was "initiated by a police officer to obtain statements for use during a criminal investigation, was recorded so further law enforcement interviews would be unnecessary, and involved structured questioning designed to confirm a prior allegation of abuse").
Additionally, N.V.C.'s statements were made under circumstances objectively indicating that the primary purpose of the interrogation was to meet an ongoing emergency, as opposed to establish or prove past events potentially relevant to a later criminal prosecution. When N.V.C. met with Kujawa at approximately 3:44 p.m. on September 16, 2019, the burned minivan and bodies of N.V.C.'s parents had not been discovered. (See, e.g., Dkt. 458 at 12 (citing to summary report from Buffalo Police Department, indicating that burned vehicle with corpse reported at 111 Tonawanda Street at approximately 5:52 p.m. on September 16, 2019)). Absent recovery of the burned minivan and the bodies, which indicated foul play, the specter of a criminal prosecution for the murders had not definitively arisen—to the contrary, efforts to locate N.V.C.'s parents were ongoing. Thus, the record does not support a conclusion that the interview of N.V.C. was for the purpose of preserving his testimony for a subsequent criminal prosecution against those who murdered his parents.
Rather, as Kujawa explained during her trial testimony, N.V.C. underwent an "emergency interview," due to concerns regarding his safety. On September 16, 2019, Kujawa received a telephone call regarding N.V.C. and subsequently met two CPS workers, along with N.V.C., at the Child Advocacy Center. According to Kujawa, the primary purpose of conducting the interview of N.V.C. was related to his safety, including because N.V.C. was facing the prospect of emergency placement into foster care, as he was a missing child and had no caretakers. Kujawa confirmed that she was not aware of law enforcement investigation into any murders, nor were there members of law enforcement present at the Child Advocacy Center at the time N.V.C. made the video recorded statement. In fact, law enforcement never spoke with Kujawa about her interview with N.V.C. until later that evening around 9:00 p.m., well after the interview had occurred.
Thus, it is apparent that the primary purpose of Kujawa's interview of N.V.C. was to address an ongoing emergency. N.V.C.'s parents remained missing at the time he gave his statement and N.V.C. could not be returned to them; in other words, N.V.C. was alone in Buffalo without his caretakers. The content of Kujawa's questions to N.V.C.—including asking him to draw what his car and his mother looked like—confirm that the primary purpose of the interview was related to N.V.C.'s safety and determining the location of his parents. Further, there is no indication from either the content of Kujawa's questions or N.V.C.'s responses thereto that either of them intended to use the statements to prove past events for purposes of a later criminal prosecution. For example, Kujawa's questions were non-suggestive and she did not engage in the kind of "structured questioning" designed to confirm prior allegations referenced in Bobadilla; rather, Kujawa allowed N.V.C. to guide the conversation regarding what had happened to his parents, often asking questions that simply repeated what N.V.C. had just told her. Again, law enforcement were not present at the interview, nor was Kujawa aware of law enforcement investigation into any murders. Likewise, while it may have become apparent to Kujawa during the course of the interview that N.V.C.'s parents had been killed, this did not, as suggested by Defendant (see Dkt. 461 at 4), transform the primary purpose of this approximate 20-minute encounter into an effort to preserve testimony for a later criminal prosecution or somehow diminish the nature of the ongoing emergency related to this child, who was without any caretakers and whose parents' whereabouts were unknown. Kujawa's role was not one of law enforcement, and in fact, she had no information concerning N.V.C.'s circumstances other than that he had been discovered alone on the street. (See Dkt. 458 at 6).
For those reasons, and having considered all the surrounding circumstances, the Court found that, viewed objectively, the "primary purpose" of N.V.C.'s video recorded statement made at the Child Advocacy Center on September 16, 2019, was to address an ongoing emergency, and not to create an out-of-court substitute for trial testimony. See Clark, 576 U.S. at 246-47, 135 S.Ct. 2173 (concluding that three-year-old victim's statements to his preschool teachers identifying defendant as the person who had caused his injuries were not testimonial; the statements, which were made in the setting of a preschool lunchroom and classroom, were given in the context of ongoing emergency, as "the teachers needed to know whether it was safe to release L.P. to his guardian at the end of the day," and "the immediate concern was to protect a vulnerable child who needed help"); Barker, 820 F.3d at 171-72 (district court did not err in holding that statement of four-and-a-half-year-old girl to nurse was non-testimonial; statements were made during ongoing emergency, including to ensure that victim was not discharged into custody of sexual abuser); cf. McCarley v. Kelly, 801 F.3d 652, 655, 664-65 (6th Cir. 2015) (statements by three-and-a-half year-old child of murder victim made to child psychologist were testimonial; law enforcement officer sought out psychologist to extract information child remembered from the night of the murder, officer asked psychologist to make him aware of anything child said about the night of the murder so he could use it in his investigation, and statements were made at least 10 days after any emergency had passed). Accordingly, the Court concluded that N.V.C.'s recorded interview statement is non-testimonial, and its admission did not violate Defendant's Sixth Amendment rights under the Confrontation Clause.
II. Excited Utterance Hearsay Exception
Having determined that admission of N.V.C.'s recorded interview statement did not violate Defendant's Sixth Amendment rights, the Court next considered whether the statements were admissible under Federal Rule of Evidence 803(2).
An "excited utterance" is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." See Fed. R. Evid. 803(2). "The hearsay exception for excited utterances is premised on a[n] . . . assumption that the reliability of a statement increases as opportunity for reflection by the declarant decreases." United States v. Jones, 299 F.3d 103, 112 (2d Cir. 2002); see also Bowen, 511 F. Supp. 3d at 447 ("The reliability of excited utterances, and therefore the reason for their admissibility, is premised upon the notion that 'the declarant, in a state of excitement, is unlikely to muster the reflection necessary for fabrication.' " (quoting Brown v. Keane, 355 F.3d 82, 90 (2d Cir. 2004)).
"For a statement to qualify as an excited utterance, the proponent of the exception must establish: '(1) the occurrence of a startling event; (2) that the declarant made the statement while under the stress of excitement caused by the event; and (3) that the declarant's statement relates to the startling event.' " United States v. Delvi, 275 F. Supp. 2d 412, 415 (S.D.N.Y. 2003) (citation omitted). "Courts consider these elements on 'a case-by-case basis,' " and "[a]ll three inquiries bear on 'the ultimate question': 'Whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event.' " Maggard v. Ford Motor Co., 320 F. App'x 367, 372 (6th Cir. 2009) (citations omitted).
In addition, excited utterances "must rest on personal knowledge" because "[m]ere excitement . . . not coupled with knowledge of the event described, adds nothing to reliability." Brown, 355 F.3d at 90. See, e.g., United States v. Gonzalez, 764 F.3d 159, 168-69 (2d Cir. 2014) (affirming district court's exclusion of statements made by young boy to officer following the murders of his father and father's wife due to the "scant contextual information available" regarding the officer's questioning of the boy, including what the boy actually witnessed, and explaining that while excited utterance rule may "solve any hearsay problem," that exception is "derived from the belief that contemporaneous statements about observed events leave less time to forget or fabricate and, therefore, tend to be reliable," and in this case, "there [was] no evidence that the child actually observed the killings at all").
Finally, a statement may still qualify as an excited utterance, even when made in response to questioning. "Declarations relating to the circumstances of a violent crime, made by the victim shortly after its occurrence . . . may be admissible although made in response to an inquiry." Delvi, 275 F. Supp. 2d at 416 (citation omitted); see also United States v. Magnan, 863 F.3d 1284, 1293 (10th Cir. 2017) ("no categorical rule exists that a statement made in response to a question falls outside the exception for excited utterances . . . . In the end . . . the query we must answer in determining whether a statement satisfies Rule 803(2)'s second condition is whether the statement was the product of reflective thought or the stress of excitement caused by the startling event.").
Both the first and third elements—the occurrence of a startling event and the relation of the declarant's statement to that startling event—are easily satisfied in this case, and indeed, Defendant did not disagree. (See Dkt. 527 at 4). As proffered by the government in its motion papers—and as borne out by the evidence at trial—N.V.C. witnessed the shooting of his mother and father and subsequently was left alone in the minivan with their dead bodies at night for approximately eight hours following the murders. Those circumstances alone could satisfy the startling event requirement—but the ordeal continued when Wilson and Cobb returned in the early morning hours of September 16, 2019, and in the presence of N.V.C., doused the minivan with gasoline and torched it and his parents' dead bodies. Then, N.V.C. was stripped down to his diaper, wiped down with soap and water, and abandoned on a stranger's front porch, where he apparently spent the remainder of the night in a cardboard box. The Court is hard-pressed to envision events more traumatizing for almost anyone, let alone a young child who was only three years old.
Likewise, as to the third element, N.V.C.'s video recorded statement plainly relates to the startling event. N.V.C. made statements concerning the "bad guy" who killed his parents, that his "mama was in the fire," that his "papa was in the fire," and that the car was covered in "oil," all of which plainly relate to the events at the center of this trial—that is, the murder of N.V.C.'s parents and subsequent destruction of evidence by burning the minivan and their bodies.
Thus, the resolution of the video recorded statement's admissibility turned on the second element—whether N.V.C. made the statement while under the stress of excitement caused by the event. The Court concluded that at the time of his interview with Kujawa, at approximately 3:44 p.m. on September 16, 2019, N.V.C. was plainly still under the stress of the excitement caused by the traumatic events that he experienced. "An excited utterance need not be contemporaneous with the startling event to be admissible under rule 803(2)," and "[t]he length of time between the event and the utterance is only one factor to be taken into account in determining whether the declarant was, within the meaning of rule 803(2), 'under the stress of excitement caused by the event or condition.' " United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990) (citation omitted); see also United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998) ("An excited utterance need not be contemporaneous with the startling event to be admissible under Rule 803(2)."). "Although the lapse of time between the startling event and the statement is relevant to whether the declarant made the statement while under the stress of excitement, the temporal gap between the event and the utterance is not itself dispositive . . . . Other relevant factors include: the characteristics of the event; the subject matter of the statement; whether the statement was made in response to an inquiry; and the declarant's age, motive to lie and physical and mental condition." Delvi, 275 F. Supp. 2d at 415 (citing United States v. Marrowbone, 211 F.3d 452, 454-55 (8th Cir. 2000)).
Based on the factual circumstances of the events in question, the review of N.V.C.'s video recorded statement, and testimony from Kujawa, the Court concluded that N.V.C. made the statement while under the stress of the excitement caused by the murder of his parents, his abandonment in the minivan with their dead bodies for approximately eight night-time hours, his witnessing of their bodies and the minivan being burned in front of him, and his middle-of-the-night desertion on a stranger's front porch in the City of Buffalo after being stripped down to a diaper and washed with water and dish soap, where he was forced to seek refuge in a cardboard box used for stray cats. N.V.C. was discovered by Augsburger on her front porch at approximately 8:00 a.m. on September 16, 2019. Given the traumatic and shocking nature of events preceding N.V.C.'s discovery, the Court concluded that notwithstanding the passage of approximately eight hours between the time Augsburger found N.V.C. and N.V.C. met with Kujawa, he was still under the stress of excitement caused by the events in question. See United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993) (statements made by five-year old child the day following a sexual assault and in response to questioning from her mother were admissible as excited utterances: "considering the surprise of the assault, its shocking nature and the age of the declarant, the stress of the attack could have continued through that day and until the following morning" (quotation omitted)); Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir. 1985) (court properly admitted as excited utterance statement by four-year old child to police officer, made twelve hours after the defendant committed murder in question, explaining that "[t]here is no reason to believe [the child's] statement to the officer was made with any premeditation, design or reflection. All indications are the youngster was petrified and cowering beneath the covers of a bed. The child's temperament appears to be one of shock and fear. Her answers to the officer's questions cannot reasonably be deemed insincere or the product of some premeditated deliberation."); see also Magnan, 863 F.3d at 1295 (trial court did not abuse discretion in admitting statement as excited utterance that was made four to five hours after shootings); Scarpa, 913 F.2d at 1016-17 (statement qualified under "excited utterance" exception, when five to six hours had passed between the beating and the statement, which was supported by witness testimony that the declarant was "very nervous" at the time he gave his statement).
Words like "traumatic" and "shocking," while accurate, also seem inadequate to describe the horror that N.V.C. experienced on September 15 and 16, 2019.
As explained in the advisory committee notes to Rule 803, in answering the question as to how long excitement can prevail "there are no pat answers and the character of the . . . event will largely determine the significance of the time factor." The Court acknowledges that eight hours is not an insignificant period of time—and indeed, if the time was measured from when N.V.C. was abandoned by Wilson and Cobb on Augsburger's porch, it would be even longer. However, the significance of that time period shrinks drastically when viewed in the context of the horrifying nature of the approximately 14-hour ordeal that N.V.C. experienced from about 6:00 p.m. on September 15, 2019, when he witnessed his parents being brutally murdered, until he was found by Augsburger at approximately 8:00 a.m. the next day. That time period becomes even further diminished when N.V.C.'s tender age is taken into account.
The conclusion that N.V.C. was still under the stress of excitement caused by these traumatic events when he met with Kujawa is confirmed by a review of the video. Almost immediately upon walking into the interview room with Kujawa, N.V.C. declares in an unprompted manner that "my mom was in a fire" and "the bad guy caught my car on fire." At that point, Kujawa had simply asked N.V.C. where he wanted to sit. In other words, N.V.C.'s own words and actions reveal that he remained under the stress of excitement caused by the shocking events that he experienced. Contrary to Defendant's suggestion that N.V.C. appeared "disinterested" in the questioning, both the substance of N.V.C.'s statements and his demeanor reveal his agitated state. N.V.C. appears to be upset and excited throughout the approximate 20-minute video with an irregular volume level in his voice—varying throughout from normal to elevated.
The Court also reviewed the video recorded interview of N.V.C. conducted three days later on September 19, 2019, by a member of the Erie County District Attorney's Office, which was marked as Government Trial Exhibit 98B. The Court observed a marked difference in the demeanor of N.V.C. between the first interview on September 16, 2019, and that subsequent interview, further supporting the conclusion that N.V.C. was under the stress and excitement of the events at the time of his statement made to Kujawa on September 16, 2019.
Kujawa's trial testimony confirmed that N.V.C. remained under the stress of the excitement caused by the murder of his parents and subsequent events, at the time he made his video recorded statement. Kujawa testified that she received a bachelor's degree in psychology and a master's degree in child and family development, and she also received specialized training on conducting forensic interviews of children. She further testified that she regularly conducts interviews of children on a weekly basis. On September 16, 2019, Kujawa was contacted to conduct an "emergency interview" of N.V.C. Kujawa testified that based on her training and experience, and when interacting with children, she makes observations and forms opinions about whether a child is under some form of trauma. Kujawa testified that N.V.C. seemed traumatized during their meeting, which she deduced based on his body language, including that N.V.C. had a shocked appearance, his eyes were wide open and frantic, and also because when answering questions the volume of his voice varied from normal to yelling, which Kujawa testified she typically observes in children who have experienced trauma. Kujawa also observed that N.V.C. was covered in fresh bug bites and "had little red bites all over his face and his forehead."
Furthermore, while the statements were made by N.V.C., in part, in response to questioning by Kujawa, this does not alter the Court's conclusion that his statements were not the result of reflective thought but rather were a spontaneous reaction to the traumatic events that he experienced. Kujawa's manner of questioning was non-suggestive and low key, with her often simply repeating the statements that N.V.C. had previously made and gently guiding him to express himself. This continued throughout the approximate 20-minute interview, and accordingly, the fact that some of the statements were made in response to direct questions by Kujawa does not alter the Court's conclusion. Likewise, there is no support in the record for Defendant's contention that either Augsburger or law enforcement somehow influenced the content of N.V.C.'s statements made to Kujawa. (Dkt. 527 at 4).
At best, the record evidence suggests that N.V.C. told Augsburger and law enforcement the same information he told Kujawa—that a bad guy set fire to his parents. (See Dkt. 461-1 at 2 (Buffalo Police Department memorandum that N.V.C. told police officer that his mother was "burned up in the car"); Dkt. 458 at 3 (government proffer that Augsburger said that N.V.C. repeatedly said "fire and car, car and fire.")).
Given all of these circumstances—including the very young age of N.V.C.; the extreme nature of the traumatic events that N.V.C. witnessed involving the murder of his parents and burning of their bodies, followed by his abandonment on a stranger's porch; the approximate 14-hour ordeal that N.V.C. experienced before being discovered by Augsburger; N.V.C.'s agitated and excited state when he was interviewed by Kujawa; and the non-suggestive manner in which Kujawa asked N.V.C. questions—the Court concluded that N.V.C.'s video recorded statement was not the result of reflective thought but rather it consisted of a spontaneous reaction to the exciting events that he had experienced notwithstanding the passage of approximately eight hours since he had been discovered by Augsburger in the cardboard box on her front porch. Accordingly, N.V.C.'s video recorded statement was deemed admissible pursuant to Federal Rule of Evidence 803(2).
CONCLUSION
For the foregoing reasons, the government's motion to admit at trial N.V.C.'s September 16, 2019 recorded interview statement at the Child Advocacy Center as an excited utterance under Rule 803(2) (Dkt. 444; Dkt. 458) was granted.
SO ORDERED.