Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION RE: ADMISSIBILITY OF PRESENT SENSE IMPRESSION/ EXCITED UTTERANCE OF DAKOTAH AUGUST

Plaintiff moves to admit the excited utterance by Dakotah August: "The police officers are beating on my Grandma!" Two of the hearsay exceptions under Rule 803, Federal Rules of Evidence apply, present sense impression and excited utterance. Present Sense Impression Within minutes of the arrest and injury of Teresa August, Sam Hickey grabbed the house telephone and dialed the cell phone number of Mark August, Dakotah August's father. Dakotah stood nearby and when Mark answered the telephone, Dakotah cried, "The police Case 2:03-cv-01892-ROS

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officers are beating on my Grandma!" This call was made during or just after Defendants rushed the house, brutally dislocated Teresa August's right elbow, and arrested Teresa August. Dakotah's statement is clearly, "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed.R.Evid. 803(1). In addition to being timely, Dakotah's statement was made with the requisite "indicia of reliability." See U.S. v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002) (murder victim's telephone statement regarding who was with her just prior to murder was admissible). Frightened and upset, Dakotah talked with his father because of the events he reported over the telephone, and he had no motive or incentive to lie about what he witnessed. Indeed, he did not even place the phone call, a further indicia of reliability as it shows he was not reflecting on what to say to his father. The statement is trustworthy and therefore admissible. Murillo at 1137-38. Excited Utterance Dakota's statement also qualifies as an 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." Fed.R.Evid. 803(2). Excited utterances of children are admissible. See U.S. v. Nick, 604 F.2d 1199 (9th Cir. 1979) (three-year-old's statement to mother admissible). The lapse of time is not an issue here, because Dakotah talked with his father during or immediately following the assault on his grandmother. The admissibility of the statement depends upon other factors, "including the age of the declarant, the characteristics of the event and the subject matter of the statements." U.S. v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995) (citing U.S. v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980)) (fifteen-year-old's statements made to her mother 45 minutes to 75 minutes after sexual assault admissible). Nine years old at the time of the events, Dakotah was able to accurately describe what was occurring; the event, the violent assault of his grandmother by four uniformed police officers, would be upsetting to an adult, not just to a child; and Dakotah's

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statements concerned the events he just witnessed. Therefore, Dakotah's statement, "The police officers are beating on my Grandma!," is admissible as an excited utterance. Conclusion For the aforestated reasons, Plaintiff moves for an order that Dakota's statement is admissible under the hearsay exceptions of present sense impressions and excited utterance. DATED this 3rd day of January, 2007. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE
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I hereby certify that on January 3, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:
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s/ Aly Shomar-Esparza

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