578 F. 2d 422 - Hilyer III IV v. Howat Concrete Company Inc Hilyer H III H IV

Appellant brought a wrongful death action in the District Court after her husband died from injuries sustained in the course of his employment as a construction worker on a subway construction project in Washington. Although several parties were named as defendants, the case proceeded through trial only against appellee Howat Concrete Co., owner and operator of the concrete mixer truck which ran over the decedent.1 After the initial trial, the jury returned a verdict for the defendant on a finding of contributory negligence, but the trial judge, concluding that certain hearsay testimony had erroneously been admitted into evidence, granted a motion for new trial. At the second trial, however, the same testimony was again received in evidence, and again the jury found in favor of the defendant. Judgment was entered accordingly.

We think that only the question of admissibility of the hearsay testimony merits discussion.2 For the reasons appearing hereinafter, we conclude that the challenged testimony was admissible, and we affirm the judgment of the District Court.

* The project on which the decedent had been working was at the corner of an intersection of two streets in downtown Washington, and it was necessary to place traffic barricades along the street between the traffic lanes and the worksite. The decedent and another worker, Howard Simms, had just placed a barricade on the street when a concrete mixer truck, making a right turn, hit the barricade and ran over the former.

The challenged testimony involves a statement made by Simms to a policeman, Officer Strother, who arrived at the scene soon after the accident occurred. Officer Strother's contemporaneous notes, as read at the trial, state:

Howard Simms . . . states . . . Jim never looked at traffic set barricade down and backed into veh. # 1 (the concrete mixer truck) which was making right turn.

R. 139, Tr. 139. Simms' remark that the decedent "backed into" the truck was of crucial importance at trial because it was the only evidence which directly substantiated appellee's defense of contributory negligence.3 However, less than three hours after the accident, Simms gave a written statement at police headquarters in which he indicated that he did not see the accident and only assumed that the decedent backed into the truck. Moreover, Simms testified (at both trials) that he had not seen the accident occur and did not remember talking with Officer Strother at the scene of the accident. Mem. Op. (Aug. 15, 1975) at 6, J.A. at 171; R. 139, Tr. 125-43.

At the trial which led to this appeal, Simms, called by appellee, testified that he "was so excited" at the time the police questioned him at the scene that he could not recall the questions asked of him. (R. 139, Tr. 127.) He also stated that he "didn't see exactly how the accident happened." (R. 139, Tr. 135.) At this point, appellee's counsel approached the bench and proposed to examine Simms concerning the oral statement made to Officer Strother. In response to an objection raised by appellant, appellee cited Rule 607 of the Federal Rules of Evidence, which allows a party to impeach his own witness. The court thereupon overruled appellant's objection and allowed the statement to be read to Simms, who, when asked whether he made the statement, replied, "Well, I was so upset, I wouldn't know exactly." (R. 139, Tr. 139.) Appellant's counsel did not request, and the court did not on its own give, an instruction to the jury limiting its consideration of the statement to an impeachment of Simms' testimony in court.

Appellee next called to the stand Officer Strother, who testified that he received a radio report of the accident at 6:47 p.m., arrived at the scene of the accident at 6:53 p.m., and interviewed Simms soon thereafter. Although Officer Strother estimated that the accident had occurred at 6:30 p.m. (R. 139, Tr. 158), this estimate appears to be too early, for it was established that the construction crew did not even arrive at the site until 6:30 (R. 137, Tr. 28). When asked to relate to the court his interview with Simms, Officer Strother testified as to Simms' statement from his present recollection, the court overruling appellant's timely objection that the statement was hearsay. (R. 139, Tr. 158-59.) Officer Strother further testified that he had requested Simms to repeat the statement, that he transcribed it verbatim into his notebook, and that Simms had immediately read that transcription and expressed his agreement with it. (R. 139, Tr. at 159.) The notes were not themselves placed in evidence.

On cross-examination by appellant's counsel, Officer Strother at first stated that Simms had been excited at the time of the interview at the accident scene. Appellant's counsel then read to the officer portions of his testimony at the first trial at which he repeatedly asserted that Simms had not appeared nervous. Upon further questioning, the officer admitted that his recollection of the events in question was not as good presently as it had been at the first trial. (R. 139, Tr. 183-85.)

We conclude that the statement given by Simms to Officer Strother at the scene of the accident was admissible not only to impeach Simms' later inconsistent testimony in court but also for the truth of the matter asserted, namely, that the decedent without regard to traffic conditions backed into the street and into the concrete mixer truck which ran over him. We first address the latter point.

The Federal Rules of Evidence, which became effective on July 1, 1975, perform the useful function of codifying the exceptions which have developed in the federal courts to the general prohibition on the admission into evidence of hearsay. As presented in the District Court proceedings, Simms' statement clearly qualified as hearsay,4 and thus was inadmissible unless it was encompassed by one of the exceptions to the hearsay rule listed in Rule 803.5 Although the record does not disclose with precision under which hearsay exception the trial judge admitted the statement,6 we find no error in such admission because the statement was within the "excited utterance" exception stated in Rule 803.

The first two exceptions in Rule 803 read as follows:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Prior to the adoption of the Federal Rules, these two exceptions were often lumped together as part of a "res gestae" exception to the hearsay rule. See, e.g., Hinton v. Dixie Ohio Exp. Co., 188 F.2d 121 (6th Cir. 1951); Wabisky v. D. C. Transit Systems, Inc., 114 U.S.App.D.C. 22, 309 F.2d 317 (1962). The Federal Rules, on the other hand, make clear that testimony qualifying under one exception is admissible even if not encompassed by the other. In the case at bar, the statement was admissible under the second of these exceptions.7

The statement clearly meets one of the two prerequisites for admission as an excited utterance: it was "a statement relating to a startling event or condition." We conclude that it also met the second prerequisite: it was made while the declarant, Simms, was "under the stress or excitement cause by the event." The most damaging testimony relating to the latter issue was by Simms himself, as described heretofore. In addition to this testimony, Simms' lack of recall of his conversation with Officer Strother may also indicate that he was under stress at the time the officer spoke with him.

We recognize that the basis on which we have concluded that Simms' prior oral statement was admissible was also the basis for admission of the statement at the first trial, and that the trial judge at the end of that trial concluded that the statement should not have been admitted, Mem. Op. at 9, J.A. at 173. Of course, the same judge then did admit the statement in the second trial.8 We believe that these actions can be reconciled.

First, the evidence received at the first trial did not demonstrate that Simms had been excited when he made the statement. In fact, as noted previously, Officer Strother's testimony at that trial expressly stated that Simms did not appear excited at the time he made the statement, and neither Simms nor anyone else testified that he had been under stress. Of course it is quite conceivable that Simms could have been under stress, as he testified at the second trial that he had been, but not have appeared excited to Officer Strother. Nevertheless, when the only direct evidence on the matter indicated lack of excitement as was true at the first but not at the second trial the trial court was justifiably dubious about whether the statement was admissible as an excited utterance.

Second, in its opinion ordering a new trial, the District Court did not rely exclusively on the determination that Simms' statement could not qualify as an excited utterance. It appears that a major consideration motivating the trial judge to conclude after the first trial that the statement should not have been admitted was that it was not confirmed by Simms in his statement given at the police station later on the night of the accident, and that indeed in this later statement Simms indicated that he had not actually seen the accident. While the trial judge concluded at the end of the first trial that these considerations "destroy(ed) entirely (the) value and worth" of the prior oral statement, Mem. Op. at 8, J.A. at 173, we agree with his subsequent determination at the second trial that these were matters for the jury to decide. At the second trial, Simms was cross-examined about his oral statement, and the circumstances surrounding the giving of both that statement and the later statement were brought out in direct and cross-examination of Simms and others. Issues relating to credibility, motivation, and probative weight were raised and were properly left to the jury.

At the first trial, Simms was not offered the opportunity to rebut or otherwise explain his oral statement to Officer Strother, since the statement was not read until Officer Strother was on the stand and Simms was not thereafter recalled to the stand. Thus, as the trial judge ruled in his grant of a new trial, the statement was not admissible for impeachment purposes. Both Rules 613(b) of the Federal Rules of Evidence and the prior law in this circuit, see United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973), require that a witness be afforded an opportunity to explain a prior inconsistent statement when it is proved by extrinsic evidence. At the second trial, Simms was questioned about the statement. Thus it would have been admissible for impeachment purposes, with a limiting instruction, even if it had not been encompassed within an exception to the hearsay rule. As the trial judge recognized, it is irrelevant that Simms was called by the appellee, since under Rule 607, a witness may be impeached by any party, including the party calling him.

In conclusion, without expressing any opinion on whether the admission of Simms' out-of-court statement at the first trial necessitated the grant of a new trial, we hold that the statement was properly admitted at the trial which led to this appeal, both for impeachment of Simms and for the truth of the matter asserted. Appellant Hilyer's other contentions of error also being without merit, see note 2 supra, the District Court is

Affirmed.