Thomas A. Davis was convicted in the Western District of Michigan of possession of a weapon by a convicted felon. He appealed to the Sixth Circuit Court of Appeals on two grounds. First he argued that hearsay was admitted at trial and second he argued that there was insufficient evidence to convict him.

The evidence at trial showed that Davis and a friend spent several days joyriding in a rented Chevrolet Cobalt. On July 10, 2007 Ronica McIntyre saw Davis, who she recognized, in the vehicle with a gun. She called 911 because she was afraid of Davis who rumor had it had been involved in a murder.

She told the 911 operator that the car was a Ford Focus and that she saw two guns instead of the one she actually saw. She gave the operator the license tag number of the vehicle. Furthermore she told the operator that she had seen Davis five minutes before calling when the actual time lapse was one and a half minutes.

The following day an anonymous woman flagged down a Grand Rapids Police officer and told him that she saw the Cobalt, with the same tag number. She also saw Davis with a gun in the vehicle. Officer LaFave transmitted the information over the police radio, available to anyone who had a scanner.

Davis and his friends stopped the vehicle at a residence. Davis got out of the car and went inside. While in the residence, apparently, he learned that the police had been notified. They drove around some more and then traded the car for a PT Cruiser at Enterprise. The FBI notified Enterprise that if was looking for the Cobalt. The FBI followed the PT Cruiser and stopped the vehicle shortly after it left Enterprise. Davis was seen maneuvering something under the seat. The FBI search the vehicle and found a gun under Davis’ seat.

On appeal Davis claimed that the court erred when it allowed McIntyre’s 911 call and the anonymous woman’s report to Officer LaFave to be entered into evidence. He claimed that both statement were inadmissible hearsay. Hearsay is:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

The Court found that the statements were not hearsay. It ruled that the anonymous woman’s statement was not offered “for the truth of the matter asserted.” Instead it was offered to explain Officer LaFave’s actions. The statement led to his placing the information on the police radio waves and therefore it could have been picked up by a scanner leading to the change in rental vehicles.

My question is whether the statement should have been excluded under Federal Evidence Code Section 403. Under Section 403 “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” If the statement was not being used for the truth of the matter asserted its probative value is minimal and by placing the gun in the hand of the Davis its prejudicial value is considerable. Therefore it should be excluded.

Upon request the trial court should have given the jury an instruction that the statement was not to be used for the truth of the matter asserted. There was no evidence before the appellate court that the request was made or that the instruction was given. If the request wasn’t made I would expect a habeas on incompetence of counsel grounds to be filed soon.

As to McIntyre’s statement, the court found it admissible under an exception to the hearsay rule for “excited utterances.” An “excited utterance” requires three elements:

First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.

The court found that there was no question as to the first and third issue. As to the second issue McIntosh clearly had time to develop false information since she lied about the number of guns and how long it had been since she saw vehicle. But the court found that due to the short period of time between seeing the vehicle and the 911 call the statement was admissible as a excited utterance.

Likewise the court had little trouble finding that there was sufficient evidence for a conviction. It is very difficult to overturn a conviction on appeal on sufficiency of the evidence grounds. The test on appeal is whether looking at the evidence in the light most favorable to the government any rational juror could find Davis guilty beyond a reasonable doubt.

The court found that there was sufficient evidence. There is the evidence that McIntyre gave on the stand that she saw Davis with the gun and the evidence that the officer saw him maneuver items under his seat where the gun was found. The court found that a rational juror could use this information to find Davis guilty beyond a reasonable doubt.