United States District Court, D. New Mexico
December 21, 2016
UNITED STATES OF AMERICA, Plaintiff,
ELIJAH SHIRLEY; MAYNARD SHIRLEY and MICHAEL SHIRLEY, Defendant.
P. Martinez, United States Attorney Linda Mott, Niki
Tapia-Brito, Nicholas James Marshall, Assistant United States
Attorneys Albuquerque, New Mexico Attorneys for the
(Molly) E. Schmidt-Nowara Garcia Ives Nowara Albuquerque, New
Mexico - and - Theresa M. Duncan Albuquerque, New Mexico
Attorneys for Defendant Maynard Shirley.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States Motion
In Limine to Permit Testimony of Unavailable Witness
As a Statement Against Interest, filed October 12, 2016 (Doc.
135)(“Motion”). The primary issue is whether the
Court should admit Defendant Elijah Shirley's statement,
allegedly made to Cornelia Jim, the mother of E.
Shirley's ex-girlfriend Valerie Jim, in the early morning
hours of March 21, 2015, that he was “going to go kick
his ass” in reference to Brandon BlueEyes, V. Jim's
new boyfriend and the deceased victim in this case. Plaintiff
United States of America seeks to admit E. Shirley's
statement against Defendant Maynard Shirley, the sole
Defendant who has decided to go to trial. The Court will
exclude the statement as inadmissible hearsay, because E.
Shirley's statement does not qualify as a statement
against interest under rule 804(b)(3) of the Federal Rules of
Evidence, and because it does not rise to the level of an
excited utterance under rule 803(2) of the Federal Rules of
Court takes its facts primarily from: (i) the Amended
Criminal Complaint, filed March 25, 2015 (Doc.
4)(“Amended Complaint”); (ii) the Transcript of
Preliminary/Detention Hearing held on March 30, 2015, filed
May 6, 2015 (Doc. 36)(“Preliminary Hearing Tr.”);
and (iii) the United States' Motion In Limine to
Admit Evidence [sic] Res Gestae Evidence Not Charged
in the Indictment Pursuant to Federal Rules of Evidence 401,
403, 404(B), filed August 29, 2016 (Doc. 77)(“Res
Gestae Motion”). The Court relies on these factual
accounts for background purposes only, as Maynard Shirley is
presumed innocent until proven guilty at trial. This
presumption of innocence, which is always important, is
especially important here, as Maynard Shirley has asserted an
alibi defense. See Defendant Maynard Shirley's
Notice of Alibi, filed June 14, 2016 (Doc. 72).
Court divides its discussion of the facts into four parts.
First, the Court will review the events leading up to killing
that occurred in the early morning of March 21, 2015. Second,
the Court will discuss the circumstances and witness accounts
of that killing. Third, the Court will discuss the search for
Maynard Shirley and his two brothers in the aftermath of the
killing. Fourth, the Court will discuss the circumstances of
Maynard Shirley's arrest on March 25, 2015.
the offense date of March 21, 2015, Maynard Shirley's
brother, E. Shirley, and E. Shirley's girlfriend, V. Jim,
had been in a ten-year relationship. See Amended
Complaint ¶ 8, at 3-4. Because of relationship problems,
however, V. Jim left E. Shirley a week before the incident
and began an intimate relationship with B. BlueEyes, with
whom E. Shirley had been close friends for years.
See Amended Complaint ¶¶ 7-8, at 3-4. V.
Jim did not tell E. Shirley that she intended to move in with
B. BlueEyes. See Amended Complaint ¶ 11, at 5.
According to V. Jim's mother, C. Jim, V. Jim left E.
Shirley “because he hit and choked her and  she did
not want to go back to him, as she was afraid of him.”
Amended Complaint ¶ 11, at 5-6.
in the morning of March 21, 2015, E. Shirley sent multiple
text messages to C. Jim inquiring about V. Jim's
location. See Amended Complaint ¶ 11, at 5. C.
Jim initially ignored these messages, but, at 1:43 a.m., she
responded that V. Jim was living with B. BlueEyes in
Fruitland, New Mexico, within the exterior boundaries of the
Navajo Nation Indian Reservation, and that E. Shirley
“needed to leave Valerie alone and let her move on with
her life . . . .” Amended Complaint ¶ 11, at 5. E.
Shirley told C. Jim that B. BlueEyes was his friend and that
he was going to “kick his ass.” Amended Complaint
¶ 11, at 5.
The Homicide on March 21, 2015.
an hour of speaking with C. Jim, E. Shirley and his brothers
Maynard Shirley and Michael Shirley -- all enrolled members
of the Navajo Nation, see Amended Complaint ¶
18, at 11-12 -- drove to the BlueEyes' trailer home in
Fruitland. See Amended Complaint ¶ 2, at 1.
Upon arriving, the brothers forcibly entered the home while
the BlueEyes family and V. Jim slept. See Amended
Complaint ¶ 8, at 3. The brothers proceeded directly to
B. BlueEyes' bedroom down the hall. See Amended
Complaint ¶ 8, at 3. Upon hearing the noise and
intrusion, B. BlueEyes stepped out of his bedroom and into
the hallway, where the Shirley brothers immediately began
stabbing him. See Amended Complaint ¶ 8, at 3.
V. Jim followed and observed E. Shirley holding an unknown
object in his hand, which he appeared to use to stab B.
BlueEyes. See Amended Complaint ¶ 8, at 3.
hearing the commotion, B. BlueEyes' father, Perry
BlueEyes, woke up and stepped into the hallway, where he saw
E. Shirley and B. BlueEyes fighting in the living room.
See Amended Complaint ¶ 10, at 4. As P.
BlueEyes proceeded down the hallway to assist his son, one of
the Shirley brothers emerged and stabbed P. BlueEyes with a
banana-shaped knife. See Amended Complaint ¶
10, at 4; Preliminary Hearing Tr. at 14:23-24 (Cahoon).
See also Preliminary Hearing Tr. at 13:7-14
(Cahoon)(stating that P. BlueEyes was “almost
immediately . . . attacked and stabbed multiple
times”). The stabbing persisted until V. Jim interceded
and told the attacker to leave. See Amended
Complaint ¶ 10, at 4. By that point, P. BlueEyes was
seriously injured and could not assist B. BlueEyes.
See Amended Complaint ¶ 9, at 4.
BlueEyes and Lakisha BlueEyes -- B. BlueEyes' mother and
sister, respectively -- were sleeping in a bedroom on the
opposite side of the residence when the Shirley brothers
broke into the house on March 21, 2015. See Amended
Complaint ¶ 12, at 6. When J. BlueEyes heard the
commotion, she exited the bedroom and saw Maynard Shirley
stabbing B. BlueEyes in the living room with a banana-shaped
knife. See Amended Complaint ¶ 12, at 6;
Preliminary Hearing Tr. at 15:24-25, 16:1 (Cahoon). As she
approached, Maynard Shirley disengaged from stabbing B.
BlueEyes and began threatening J. BlueEyes with the knife.
See Amended Complaint ¶ 12, at 6. L. BlueEyes
followed J. BlueEyes and observed Maynard Shirley threatening
her mother with a banana-shaped knife. See Amended
Complaint ¶ 13, at 7. When J. BlueEyes saw L. BlueEyes,
she directed her to call 911. See Amended Complaint
¶ 13, at 7.
the commotion, one of the Shirley brothers exited the trailer
to retrieve a flare gun, returned, and shot at P. BlueEyes
between his legs as P. BlueEyes lay on the floor.
See Amended Complaint ¶ 12, at 6. The three
Shirley brothers then left the scene. See Amended
Complaint ¶ 12, at 6. J. BlueEyes recalls that, in the
subsequent confusion, V. Jim was on the ground, holding B.
BlueEyes in her arms and crying, and repeatedly saying that
“Maynard was the one who stabbed and killed [B.
BlueEyes].” Amended Complaint ¶ 12, at 7.
a.m., 911 dispatchers received a call from L. BlueEyes
advising that her brother, B. BlueEyes, and father, P.
BlueEyes, had been stabbed in their trailer home.
See Amended Complaint ¶ 2, at 1. L. BlueEyes
advised that there was a lot of blood and that the Shirley
brothers had departed the scene. See Amended
Complaint ¶ 2, at 1. Navajo Nation Police Officers
Kurtis Halkani and Jo Donna Salt were promptly dispatched to
the scene at 2:50 a.m. See Amended Complaint ¶
3, at 1-2. Shortly thereafter, at 3:06 a.m., a relative of B.
BlueEyes and P. BlueEyes contacted the Shiprock New Mexico
Police Department and “reported that someone had broken
into said residence, beat up [B. BlueEyes], and that [B.
BlueEyes] was not breathing.” Amended Complaint ¶
4, at 2.
arrived on scene at approximately 3:09 a.m., followed shortly
thereafter by Salt, who took position outside the residence
to provide security. See Amended Complaint ¶ 5,
at 2. Upon observing a blood-like substance on the deck area
leading into the home and on the front door, Halkani entered
the residence and found B. BlueEyes lying on the ground,
soaked in blood. See Amended Complaint ¶ 5, at
2; Preliminary Hearing Tr. at 8:17-21 (Cahoon). V. Jim was on
the ground embracing B. BlueEyes, crying and distraught.
See Amended Complaint ¶ 5, at 2. According to
Halkani, B. BlueEyes had no pulse and had a large stab wound
on his left upper chest area. See Amended Complaint
¶ 5, at 2; Preliminary Hearing Tr. at 9:1-4 (Cahoon).
Halkani also observed P. BlueEyes nearby, bent over on the
couch in the living room, with multiple stab wounds and
covered in blood. See Amended Complaint ¶ 5, at
2; Preliminary Hearing Tr. at 9:8-10 (Cahoon). Blood appeared
to be on the floor and walls of the hallway leading back to
two bedrooms. See Amended Complaint ¶ 5, at 2.
told Halkani that she used to be in a relationship with E.
Shirley, that all three brothers live in Kirtland, New
Mexico, and that they drive a white BMW. See Amended
Complaint ¶ 7, at 3. See also Preliminary
Hearing Tr. at 26:14-15 (Cahoon)(stating that Maynard Shirley
owns the BMW). V. Jim added that she had been in a
relationship with B. BlueEyes for one month, see
Amended Complaint ¶ 7, at 3, that she had recently lived
with the Shirleys, and that E. Shirley was
“tough” and a “bully, ” Amended
Complaint ¶ 8, at 4. She also relayed that Maynard
Shirley had been in prison for a long time and that
“she is scared of him.” Amended Complaint ¶
8, at 4.
a.m., P. BlueEyes was rushed to San Juan Regional Medical
Center for injuries he sustained while trying to protect B.
BlueEyes. See Amended Complaint ¶ 9, at 3. As
of March 25, 2015, P. BlueEyes was still being treated for a
collapsed lung and multiple stab wounds. See Amended
Complaint ¶ 9, at 4. In an interview at the hospital a
couple days after the incident, P. BlueEyes, who is about
five feet, eight inches tall, described his attacker as being
as “just a tad bit smaller than him” and said
that he was stabbed with a banana-shaped knife. Preliminary
Hearing Tr. at 14:18-24 (Cahoon).
The Search for the Shirley Brothers.
in the day on March 21, 2015, Special Agent Cary S. Cahoon of
the United States Department of Justice, Federal Bureau of
Investigation, and Criminal Investigator Jefferson Joe of the
Navajo Department of Criminal Investigations, commenced an
effort to locate Maynard, Elijah, and Michael Shirley.
See Amended Complaint ¶ 14, at 8. Cahoon and
Joe met with the Shirley brothers' mother, Althea
Shirley, who said that the Shirley brothers were at their
home in Kirtland and that she had just come from there.
See Amended Complaint ¶ 14, at 8; Preliminary
Hearing Tr. at 27:4-10 (Cahoon). Cahoon and Joe instructed A.
Shirley to go to the brothers' home, and relay that
Cahoon and Joe needed to speak with them about the incident
that occurred early that morning. See Amended
Complaint ¶ 14, at 8. When A. Shirley arrived, however,
she discovered that Maynard Shirley and his fiancée,
Arnelia Williams, had “completely cleaned out their
room of their belongings and had left the house.”
Amended Complaint ¶ 14, at 8. E. Shirley also was not
there; only Michael Shirley remained. See Amended
Complaint ¶ 14, at 8.
Shirley and Maynard Shirley had relocated to their
grandmother's home and “sheep camp” thirty
minutes outside of Farmington, New Mexico, on the Navajo
Indian Reservation. Res Gestae Motion at 8; Amended Complaint
¶ 15, at 9; Preliminary Hearing Tr. at 85:19 (Cahoon).
In their absence, A. Shirley urged Michael Shirley to call
and set up a time to meet with Cahoon and to discuss the
incident. See Amended Complaint ¶ 14, at 8.
Michael Shirley consented, and a meeting was set for 3:00
p.m. that day at the Criminal Investigations office in
Shiprock, New Mexico. See Amended Complaint ¶
14, at 8. On the telephone, Michael Shirley indicated that he
would call ahead of the appointment to confirm that he could
make it; however, Cahoon never received such confirmation,
despite numerous attempts to contact Michael Shirley by
telephone. See Amended Complaint ¶ 14, at 8.
Cahoon was likewise unable to reach Michael Shirley the
following day, March 22, 2015. See Amended Complaint
¶ 14, at 9.
March 23, 2015, Michael Shirley, A. Shirley, and other
relatives traveled to the grandmother's house to urge E.
Shirley and Maynard Shirley to surrender to law enforcement.
See Res Gestae Motion at 8; Amended Complaint ¶
14, at 9. E. Shirley agreed to surrender, but Maynard Shirley
and Michael Shirley elected to remain at the house,
see Res Gestae Motion at 8, stating that “they
refused to meet with law enforcement, ” Amended
Complaint ¶ 15, at 9. See Preliminary Hearing
Tr. at 32:3 (Cahoon)(stating that E. Shirley surrendered).
According to the relatives who were present, the Shirley
brothers stated that “law enforcement could come and
try to get them if they wanted.” Amended Complaint
¶ 15, at 9. Maynard Shirley and Michael Shirley then
began yelling at and getting angry with the relatives,
causing them to leave the property out of “fear for
their safety and the potential something bad could happen if
law enforcement came and tried to arrest Michael and
Maynard.” Amended Complaint ¶ 15, at 9.
Shirley was subsequently taken to the station at 4:00 p.m. on
March 23, 2015, where he “acted as if it was the first
time he heard about the incident involving [B.
BlueEyes].” Amended Complaint ¶ 15, at 9. After
some questioning, E. Shirley invoked his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and
requested an attorney. See Amended Complaint ¶
15, at 9.
E. Shirley left, Maynard Shirley, Michael Shirley, A.
Williams, and other witnesses went to the “wash”
by the grandmother's house where they had concealed
Maynard Shirley's white BMW. Res Gestae Motion at 8;
Amended Complaint ¶ 15, at 9. Together, they removed
their belongings from the vehicle. See Res Gestae
Motion at 8. Maynard Shirley and Michael Shirley then
proceeded to wipe the vehicle down “to remove any
latent prints[.]” Res Gestae Motion at 8. Finally, they
“damaged the interior of the vehicle, broke out
windows, and  set the car on fire.” Res Gestae Motion
following day, March 24, 2015, family members advised Joe
that Maynard Shirley and Michael Shirley had burned the white
BMW at their grandmother's house. See Amended
Complaint ¶ 16, at 10. Law enforcement subsequently went
to the property and found the burned BMW, yet Maynard Shirley
and Michael Shirley were nowhere to be found. See
Amended Complaint ¶ 16, at 10.
Maynard Shirley's Arrest.
March 25, 2015, the Honorable B. Paul Briones, United States
Magistrate Judge for the District of New Mexico, issued a
warrant for Maynard Shirley's arrest. See Arrest
Warrant for Maynard Shirley at 1, filed March 25, 2015 (Doc.
2). That day, the FBI received word that Maynard Shirley and
A. Williams had travelled to Aztec, New Mexico, where they
were staying at a cousin's trailer home. See
Preliminary Hearing Tr. at 37:2-5 (Mott, Cahoon). Acting on
this information, law enforcement agents/officers surrounded
the residence. See Preliminary Hearing Tr. at
37:12-21 (Cahoon). After repeated knocks and unsuccessful
attempts to make oral contact with either Maynard Shirley or
A. Williams, the officials entered the residence with a key
that the cousin provided. See Preliminary Hearing
Tr. at 37:19-21 (Cahoon).
the residence, the officials found A. Williams in one of the
trailer's bathrooms. See Preliminary Hearing Tr.
at 37:21-24 (Cahoon). The officials inquired about Maynard
Shirley's whereabouts, but A. Williams said that she did
not know. See Preliminary Hearing Tr. at 37:24-25
(Cahoon). A. Williams was then detained while the officials
cleared the rest of the residence. See Preliminary
Hearing Tr. at 38:1 (Cahoon). As the officers cleared the
back bedroom, they discovered Maynard Shirley concealed
between a mattress and box spring of a bed in the room.
See Preliminary Hearing Tr. at 38:2-4 (Cahoon).
Maynard Shirley was armed with a knife. See
Preliminary Hearing Tr. at 38:4 (Cahoon). In Cahoon's
opinion, the knife looked like a hunting knife, not a banana
knife as the witnesses to B. BlueEyes' killing described
that weapon. See Preliminary Hearing Tr. at 39:1-3
(Mott, Cahoon). Maynard Shirley then was taken into custody.
See Record of Arrest of Maynard Shirley at 1,
entered March 27, 2015 (Doc. 8)([text-only-entry]).
to Maynard Shirley's and A. Williams' arrest, law
enforcement “obtained a warrant to search bags
belonging to Mr. Shirley and his fiancée that we[re]
found inside the home where they were arrested.”
Defendant Maynard Shirley's Motion in Limine Regarding
Possession of Knives and an Axe at 2, filed September 26,
2016 (Doc. 116)(“Knives and Axe Motion”). Among
these belongings were “several knives, including
pocketknives and a Gerber knife, as well as an
axe.” Knives and Axe Motion at 2.
United States commenced this action on March 25, 2015.
See Criminal Complaint at 1, filed March 25, 2015
(Doc. 1)(“Complaint”). In the Complaint, the
United States recites the foregoing facts, describes the
Shirley brothers' physical characteristics according to
government databases, and argues that the Shirley brothers
match the descriptions provided by the witnesses who were
present at the BlueEyes residence during the stabbing of B.
BlueEyes and P. BlueEyes. See Complaint ¶ 17,
at 11. Based on these allegations, the United States
concludes that there was probable cause to charge E. Shirley,
Maynard Shirley, and Michael Shirley with murder, aiding and
abetting, and assault. See Complaint ¶ 18, at
following evening, on March 26, 2015, Michael Shirley was
arrested in Farmington. See Preliminary Hearing Tr.
at 40:13-18 (Cahoon). At that point, all three Shirley
brothers were in custody -- E. Shirley had surrendered on
March 23, 2015, see Amended Complaint ¶ 15, at
9, and Maynard Shirley had been arrested on March 25, 2015,
see Preliminary Hearing Tr. at 39:11-20 (Mott,
April 14, 2015, a Grand Jury indicted E. Shirley, Maynard
Shirley, and Michael Shirley on three counts: (i) unlawfully
killing B. BlueEyes -- with a knife -- with malice
aforethought in violation of 18 U.S.C. §§ 1153,
111, and 18 U.S.C. § 2; (ii) assaulting P. BlueEyes and
causing serious bodily injury in violation of 18 U.S.C.
§§ 1153, 113(a)(6), and 18 U.S.C. § 2; and
(iii) assaulting P. BlueEyes with a dangerous weapon -- a
knife -- with intent to inflict bodily harm in violation of
18 U.S.C. §§ 1153, 113(a)(3), and 18 U.S.C. §
2. See Indictment at 1-2, filed April 14, 2015 (Doc.
25). On February 25, 2016, the Court set trial for October
17, 2016. See Order to Continue at 2, filed February
25, 2016 (Doc. 66).
September 21, 2016, in proceedings before the Honorable
William P. Lynch, United States Magistrate Judge for the
District of New Mexico, Michael Shirley entered a guilty plea
as to all three counts charged in the indictment.
See Clerk's Minutes for Plea Hearing held on
9/21/2016 at 1, entered September 23, 2016 (Doc. 109). E.
Shirley also pled guilty in the same proceedings.
See Clerk's Minutes for Plea Hearing held on
9/21/2016 at 1, entered September 23, 2016 (Doc. 110).
Maynard Shirley is now the sole Defendant in the case.
United States now moves to admit E. Shirley's statement
to C. Jim, allegedly made early in the morning on March 21,
2015, that he was “going to kick his ass” in
reference to B. BlueEyes. Motion at 2. The United States
seeks to introduce this statement “as a statement
against penal interest under Fed.R.Evid. 804(b)(3).”
Motion at 1. In the alternative, the United States argues
that the Court should admit the statement “as an
excited utterance under Fed.R.Evid. 803(2).” Reply to
Defendant Maynard Shirley's Response [Doc. 137] to United
States' Motion In Limine to Permit Testimony of
Unavailable Witness as a Statement Against Interest at 3,
filed October 16, 2016 (Doc. 146)(“Motion
Reply”). In response, Maynard Shirley argues that the
statement “is inadmissible hearsay and should not be
admitted at trial.” Defendant Maynard Shirley's
Response to United States' Motion In Limine to Permit
Testimony of Unavailable Witness as a Statement Against
Interest [Doc. 135] at 2, filed October 13, 2016 (Doc.
testimony is generally inadmissible.” United States
v. Christy, 2011 WL 5223024, at *5 (D.N.M.
2011)(Browning, J.) (citing Fed.R.Evid. 802). Under rule
801(c) of the Federal Rules of Evidence, “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.” Fed.R.Evid.
801(c). Hearsay bars a party from presenting its own
statements, such as “a defendant . . . attempt[ing] to
introduce an exculpatory statement made at the time of his
arrest without subjecting himself to
cross-examination.” United States v.
Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999)(Carnes,
J.). A statement that is otherwise hearsay, however, may be
offered for a permissible purpose other than to prove the
truth of the matter asserted, including impeaching a witness.
See United States v. Caraway, 534 F.3d 1290, 1299
(10th Cir. 2008)(Hartz, J.)(“We have already explained
why the content of the statement, if used substantively,
would be inadmissible hearsay. If admitted for impeachment
purposes, however, it is not hearsay.”). Rule 805 of
the Federal Rules of Evidence recognizes that
“[h]earsay within hearsay” -- commonly referred
to as double hearsay -- may be admissible “if each part
of the combined statements conforms with an exception to the
rule.” Fed.R.Evid. 805. A party opponent's
statement is excluded from the definition of hearsay where:
The statement is offered against an opposing party and:
(A) was made by the party in an individual
or representative capacity;
(B) is one the party manifested that it
adopted or believed to be true;
(C) was made by a person whom the party
authorized to make a statement on the subject;
(D) was made by the party's agent or
employee on a matter within the scope of that relationship
and while it existed; or
(E) was made by the party's
coconspirator during and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2). The United States Court of Appeals
for the Tenth Circuit has stated:
Admissions by a party-opponent are excluded from the category
of hearsay on the theory that their admissibility in evidence
is the result of the adversary system rather than
satisfaction of the conditions of the hearsay rule. No
guarantee of trustworthiness is required in the case of an
admission. The freedom which admissions have enjoyed from
technical demands of searching for an assurance of
trustworthiness in some against-interest circumstance, and
from restrictive influences of the opinion rule and the rule
requiring first-hand knowledge, when taken with the
apparently prevalent satisfaction with the results, calls for
a generous treatment of this avenue of admissibility.
Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643, 667 (10th Cir. 2006)(Seymour, J.)(internal
quotation marks and alterations omitted).
REGARDING RULE 803(2)
803(2), commonly referred to as the excited utterance
exception, provides an exception to the exclusion of hearsay
statements for “[a] statement relating to a startling
event or condition, made while the declarant was under the
stress of excitement that it caused.” Fed.R.Evid.
803(2). The United States Court of Appeals for the District
of Columbia has noted that “[t]he rationale underlying
the ‘excited utterance' exception is that
‘excitement suspends the declarant's powers of
reflection and fabrication, consequently minimizing the
possibility that the utterance will be influenced by self
interest and therefore rendered unreliable.'”
United States v. Alexander, 331 F.3d 116, 122
(D.D.C. 2003)(quoting United States v. Brown, 254
F.3d 454, 458 (3d Cir. 2001)). “Thus, to qualify as an
excited utterance, the declarant's state of mind at the
time that the statement was made must preclude conscious
reflection on the subject of the statement.” United
States v. Alexander, 331 F.3d at 122 (quoting United
States v. Joy, 192 F.3d 761, 766 (7th Cir.
1999))(internal quotations and changes omitted). The Tenth
Circuit, in United States v. Smith, 606 F.3d 1270
(10th Cir. 2010), set forth a district court's required
analysis for whether a statement is admissible under the
excited utterance exception:
The so-called excited-utterance exception has three
requirements: (1) a startling event; (2) the statement was
made while the declarant was under the stress of the
event's excitement; and (3) a nexus between the content
of the statement and the event. There is no precise amount of
time between the event and the statement beyond which the
statement cannot qualify as an excited utterance.
Admissibility hinges on a statement's contemporaneousness
with the excitement a startling event causes, not the event
itself. There is no hard time limit that must be met under
Rule 803; what is relevant is whether the declarant is still
under the excitement of the startling event.
606 F.3d at 1279 (citations and internal quotation marks
omitted). The Tenth Circuit has noted:
Courts consider a range of factors in determining whether a
declarant made a statement while under the stress of a
particular event. Among the more relevant factors are: the
amount of time between the event and the statement; the
nature of the event; the subject matter of the statement; the
age and condition of the declarant; the presence or absence
of self-interest; and whether the statement was volunteered
or in response to questioning.
United States v. Pursley, 577 F.3d 1204, 1220 (10th
Cir. 2009). “Permissible subject matter of the
statement is [not] limited . . . to description or
explanation of the event or condition . . . . [T]he statement
need only relate to the startling event or condition, thus
affording a broader scope of subject matter coverage.”
United States v. Frost, 684 F.3d 963, 973 (10th Cir.
2012)(first brackets in original)(quoting Fed.R.Evid. 803
Advisory Comm. Notes). “If the trial court has access
to a recording of the declarant's statement, it may also
consider the declarant's ‘tone and tenor of
voice' in determining whether the declarant made that
statement while under the stress of excitement.”
United States v. Alexander, 331 F.3d at 123 (quoting
United States v. Woodfolk, 656 A.2d 1145, 1151 n.16
(D.C. 1995)(collecting cases)).
United States Court of Appeals for the Second Circuit has
provided an analysis of the similarities and subtle
differences between the present sense impression and excited
utterance exceptions to the rule against hearsay:
As defined by the Federal Rules of Evidence, a present sense
impression is a statement “describing or explaining an
event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter.”
Rule 803(1), Fed.R.Evid. Such statements are considered to be
trustworthy because the contemporaneity of the event and its
description limits the possibility for intentional deception
or failure of memory. See United States v. Brewer,
36 F.3d 266, 272 (2d Cir. 1994).
The hearsay exception for excited utterances is premised on a
similar, though distinct, assumption that the reliability of
a statement increases as opportunity for reflection by the
declarant decreases. An “excited utterance” is
“[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.” Rule
803(2), Fed.R.Evid. As we have explained, “[t]he
rationale for this hearsay exception is that the excitement
of the event limits the declarant's capacity to fabricate
a statement and thereby offers some guarantee of its
reliability.” [United States v.] Tocco, 135
F.3d  [116, ] 127[ (2d Cir. 1998)]. Unlike present sense
impressions, “[a]n excited utterance need not be
contemporaneous with the startling event to be
admissible.” Id. Rather “[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).
. . . .
Thus while the hearsay exception for present sense
impressions focuses on contemporaneity as the guarantor of
reliability, and requires that the hearsay statement
“describe or explain” the contemporaneous event
or condition, Rule 803(1), Fed. R. Evid., the excited
utterance exception is based on the psychological impact of
the event itself, and permits admission of a broader range of
hearsay statements -- i.e. those that “relate to”
the event. Rule 803(2), Fed. R. Evid.
United States v. Jones, 299 F.3d 103, 112 & n.3
(2d Cir. 2002).
Maples v. Vollmer, 2013 WL 1681234 (D.N.M.
2013)(Browning, J.), the plaintiff's
“then-boyfriend's daughter” called 911; in
response, the defendant officers arrived at the
plaintiff's residence. 2013 WL 1681234, at *1. The
plaintiff was in his front yard when the officers arrived;
when he tried to walk away from them, the officers chased the
plaintiff, who then fled from the officers. See 2013
WL 1681234, at *1. The officers tackled the plaintiff when
they caught up to him, and the plaintiff alleged that the
officers used excessive and unnecessary force. See
2013 WL 1681234, at *1. The plaintiff filed a motion in
limine, asking the Court to prohibit the defendants or their
witnesses from disclosing the contents of the 911 call.
See 2013 WL 1681234, at *2. The Court concluded that
the call was admissible under rule 803(2), noting that it
satisfied the three requirements of the excited-utterance
exception to the rule against hearsay:
The second and third requirements of the excited utterance
analysis cannot reasonably be challenged under the
circumstances surrounding S. Lane's 911 call: (i) S.
Lane's statements were contemporaneous with the event,
and there is thus no lapse of time here between the startling
event to which S. Lane's statements relate and the
statements; and (ii) there is a nexus between the
statements' content and the event, as S. Lane's
statements detail the event in real time, explain why the
event prompted her to call 911, and describe Maples to the
2013 WL 1681234, at *16. The remaining issue was whether the
event to which they relate -- the plaintiff's
“attempt to allegedly wrongfully gain access” to
his residence and his “coming after” the
caller's father -- was “a startling event or
condition.” 2013 WL 1681234, at *16.
Professor Stephen A. Saltzburg explains that courts have been
quite liberal in finding that an event is startling for
purposes of rule 803(1):
In most cases it is not seriously disputed that the event to
which the excited utterance relates is in fact a startling
event. Occurrences such as accidents, fights, and physical
crimes are generally deemed startling events. However,
admissibility under the Rule is not limited to events
describing such clearly upsetting occurrences. The Courts
have been quite expansive in finding that an event triggered
a startled statement is in fact a startling event.
4 Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra, Fed. Rules of Evid. Manual §
803.02[b], at 803-18 (9th ed. 2006)(footnotes omitted).
Professor Saltzburg cites to David v. Pueblo
Supermarket, 740 F.2d 230 (3d Cir. 1984), as an
“e.g.” example to support his proposition that
courts have been quite expansive in finding a startling
event. In David v. Pueblo Supermarket, the United
States Court of Appeals for the Third Circuit held that a
woman observing another woman, to whom she was not related,
“who was eight months pregnant fall directly on her
stomach . . . would reasonably qualify as a ‘startling
occasion.'” 740 F.2d at 235. Another example to
which Professor Saltzburg cites is United States v.
Beverly, 369 F.3d 516 (6th Cir. 2006), in which the
United States Court of Appeals for the Sixth Circuit held
that “viewing the photograph of the individual that
[the declarant] recognized as her husband committing a bank
robbery was a startling event.” 369 F.3d at 540.
2013 WL 1681234, at *16. The Court noted that the caller
believed that the plaintiff was not supposed to be at his
residence, “he had left the hospital when he should not
have, that she was ‘pretty sure' he was in the
hospital because he was suicidal, and that she believed [the
plaintiff] was at the residence because he was coming after
her father, ” concluding that “[t]hese events are
at least as startling as observing an unrelated person, even
a pregnant person, slip in a grocery store.” 2013 WL
1681234, at *16.
evidence is generally inadmissible “because it is
considered unreliable.” United States v.
Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)(citing
Williamson v. United States, 512 U.S. 594, 598
(1994)). See Fed.R.Evid. 801(c) (defining hearsay as
an out-of-court statement offered “to prove the truth
of the matter asserted in the statement”). The hearsay
rule is subject, however, to several exceptions. Under rule
804(b)(3)(A), an out-of-court statement is admissible if the
declarant is unavailable to testify, and the statement is
“against the declarant's proprietary, pecuniary, or
penal interest.” United States v. Lozado, 776
F.3d at 1125 (citing Williamson v. United States,
512 U.S. at 599-600). A statement against interest is one
that “a reasonable person in the declarant's
position would have made only if the person believed it to be
true.” Fed.R.Evid. 804(b)(3)(A). Moreover, the
statement must be “supported by corroborating
circumstances that clearly indicate its
trustworthiness.” Fed.R.Evid. 804(b)(3)(B).
United States argues that E. Shirley's alleged statement
to C. Jim -- that he was “going to go kick [B.
BlueEyes'] ass” -- is admissible as a statement
against E. Shirley's penal interest. Motion at 2. The
United States reasons that, to qualify for the hearsay
exception under rule 804(b)(3)(A), a statement must simply
“implicate a criminal act or provide significant
details of a criminal act.” Motion Reply at 1 (citing
Williamson v. United States, 512 U.S. at 604). Here,
the United States contends that E. Shirley's statement
was inculpating, because it exposed him “to a greater
risk of criminal liability” and shows his “intent
to do the crime.” Motion Reply at 1. The United States
also contends that E. Shirley's statement “provides
a motive for the crime” and shows his “intent to
harm Brandon BlueEyes;” in the United States' view,
“[a] reasonable person in the position of Elijah
Shirley would not have made the statement unless they
believed it to be true and they intended to commit the
act.” Motion Reply at 1 (citing United States v.
Lozado, 776 F.3d at 1130).
Court disagrees with the United States. “‘To be
admissible under Rule 804(b)(3), a statement against penal
interest must so far tend to subject the declarant to
criminal liability that a reasonable man in his position
would not have made the statement unless he believed it to be
true.'” United States v. Lozado, 776 F.3d
at 1125 (quoting United States v. Chalan, 812 F.2d
1302, 1311 (10th Cir. 1987)). The United States is correct
that the statement itself “does not have to be a
criminal act.” Motion Reply at 1. For example, in
Williamson v. United States the Supreme Court of the
United States of America held that the defendant's
statement admitting his possession of cocaine in a suitcase
was “clearly” admissible under rule 804(b)(3).
512 U.S. at 604. Nevertheless, to be a statement against
interest, the statement must have a strong tendency to
“subject the declarant to criminal liability[.]”
United States v. Lozado, 776 F.3d at 1125 (citation
omitted). Here, the statement at issue -- “I'm
going to kick his ass” -- does not have a strong
tendency to subject E. Shirley to criminal liability. The
Court agrees with Maynard Shirley that “[i]t is not a
crime to become angry that your significant other has been
unfaithful, to express that anger, or even to intend to
‘kick [someone's] ass.'” Motion Response
at 2 (alterations in original). In Williamson v. United
States, the defendant's statement that there was
cocaine in the suitcase was against his penal interest,
because he thereby “essentially forfeited his only
possible defense to a charge of cocaine possession, lack of
knowledge, ” 512 U.S. at 604; here, however, E.
Shirley's statement was simply an expression of
frustration, which -- by itself -- implicates nothing
criminal. Had E. Shirley said he already kicked B.
BlueEyes' ass, that statement would have been against his
penal interests; a future statement, by contrast, goes more
toward intent or motive.
rule 804(b)(3)(B) requires that the context and circumstances
under which the proffered statement against penal interest is
made “clearly indicate its trustworthiness.”
Fed.R.Evid. 804(b)(3)(B). The Tenth Circuit has provided that
a “statement lacks circumstantial guarantees of
trustworthiness” unless a reasonable person would be
“aware that the statement could have adverse
consequences[.]” United States v. Lozado, 776
F.3d at 1125. Here, the circumstances do not suggest that a
reasonable person would be aware that declaring
“I'm going to kick his ass” would adversely
affect the speaker's penal interests. Awareness of
adverse consequences to one's penal interests, of course,
requires that such penal interests exist at the time the
statement is made. In other words, unless the harm is
concomitant with the utterance of the statement, the risk of
that harm could have no influence on the declarant to speak
truthfully, and thus, there could be no circumstantial
guarantees of trustworthiness. See Fed.R.Evid. 804
advisory committee notes (stating that the rationale for this
hearsay exception is “the assumption that persons do
not make statements which are damaging to themselves unless
satisfied for good reason that they are true”). In this
case, E. Shirley's alleged statement preceded the alleged
murder on March 21, 2015, and was made in a different
location. See Amended Criminal Complaint ¶ 11,
at 5, filed March 25, 2015 (Doc. 4)(“Amended
Complaint”). Accordingly, E. Shirley could not have
been aware of the adverse consequences of the statement to
his penal interests, because his penal interests were not yet
United States argues, in the alternative, that the Court
should admit E. Shirley's alleged statement “as an
excited utterance under Fed.R.Evid. 803(2).” Motion
Reply at 3. The United States argues that the statement was
“Elijah Shirley's immediate response upon finding
out troubling news, ” that it was his
“instinctive reaction to the stressor, ” and that
he “was still under the stress of excitement it caused
when he made the statement.” Motion Reply at 3.
line of argumentation is likewise unpersuasive. The Tenth
Circuit has stated that the “excited-utterance”
exception to the rule against hearsay “‘has three
requirements: (1) a startling event; (2) the statement was
made while the declarant was under the stress of the
event's excitement; and (3) a nexus between the content
of the statement and the event.'” United States
v. Smith, 606 F.3d at 1279 (quoting United States v.
Pursley, 577 F.3d at 1220). The Tenth Circuit considers
a range of factors in determining whether a “startling
event” occurred, such as the event's nature, the
declarant's age and condition, and whether the declarant
has any self-interest. See United States v. Pursley,
577 F.3d at 1220. A common example of a startling event is
where the declarant is the victim of a crime. See United
States v. Pursley, 577 at 1221 (holding that a
“brutal assault” was a “startling
event”); United States v. Smith, 606 F.3d at
1279 (holding that a “sexual assault” was a
“startling event”); United States v.
Ledford, 443 F.3d 702, 710 (10th Cir. 2005)(finding that
a “domestic altercation, ” culminating in a death
threat, “was clearly a startling event”).
Moreover, “there is no precise amount of time between
the event and the statement beyond which the statement cannot
qualify as an excited utterance.” United States v.
Ledford, 443 F.3d at 711. Rather, “[a]dmissibility
hinges on a statement's contemporaneousness with the
excitement a startling event causes, not the event
itself.” United States v. Smith, 606 F.3d at
1279 (citing United States v. Pursley, 577 F.3d at
the Court concludes that E. Shirley's alleged statement
-- that he was “going to go kick [B. BlueEyes']
ass” -- does not qualify as an “excited
utterance” under rule 803(2). Although potentially
upsetting, news that E. Shirley's ex-girlfriend, V. Jim,
was living with B. BlueEyes does not rise to the level of
“startling” under rule 803(2). A “startling
event” is something more exciting and stressful --
frequently, it involves a physical altercation. United
States v. Pursley, 577 at 1221 (“brutal
assault”); United States v. Smith, 606 F.3d at
1279 (“sexual assault”); United States v.
Ledford, 443 F.3d at 710 (“domestic
altercation”). A death threat can qualify as a
“startling event, ” depending on the
circumstances. United States v. Ledford, 443 F.3d at
710 (holding that a death threat contingent upon the victim
calling the police was a startling event, and that the
victim's recitation of that threat when actually calling
the police was an excited utterance). Here, news that V. Jim
had begun a new relationship -- even with a friend,
see Amended Complaint ¶¶ 7-8, at 3-4
--does not approach the level of excitement and stress that
the Tenth Circuit's cases, referenced supra,
have required. Here there was neither an altercation nor
anything approaching a threat to E. Shirley. Further, E.
Shirley and V. Jim had already been separated for a week when
E. Shirley made the alleged statement. See Amended
Complaint ¶¶ 7 and 8, at 3-4. At a minimum, news
that V. Jim was living with another man was only somewhat
surprising at that point, because she and E. Shirley were no
longer together. The news was more upsetting than exciting.
Thus, E. Shirley's statement does not qualify under the
“excited utterance” exception to the hearsay
rule, because a sufficiently startling event did not trigger
ORDERED that the United States Motion In Limine to
Permit Testimony of Unavailable Witness As a Statement
Against Interest, filed October 12, 2016 (Doc. 135), is
The United States alleges that Maynard
Shirley was in possession of a “Bear Gryllis
[sic]” Gerber Knife and “Bear Gryllis
[sic]” Gerber Axe. See Knives and Axe Motion
at 2. At the hearing, the United States clarified that these
items bear the eponymous name of “TV personality”
and “survivalist, ” Bear Grylls. Transcript of
Exhibit Hearing (taken September 29, 2016) at 15:24-16:1
(Duncan). The Court notes that the parties' briefings
incorrectly refer to “Bear Gryllis, ” not
“Bear Grylls” products.
The 2011 restyling of the Federal Rules
removed “admissions” from the language of rule
801(d) of the Federal Rules of Evidence, and uses instead the
term “statements.” Fed.R.Evid. 801(d). This
replacement was purposeful: “The term
‘admissions' is confusing because not all
statements covered by the exclusion are admissions in the
colloquial sense -- a statement can be within the exclusion
even if it ‘admitted' nothing and was not against
the party's interest when made.” Fed.R.Evid. 801,
advisory committee's note on 2011 Amendments.
Although the advisory committee made the commentary
quoted in the text regarding the trustworthiness of
“admissions by a party-opponent” before the 2011
amendments to the Federal Rules of Evidence, the analysis
should not be different under the new 2011 restyling of the
rules. Because the advisory committee's purpose for the
2011 restyling was to make the rules “more easily
understood and to make style and terminology consistent
through the rules, ” and there was no “intent to
change any result in any ruling on evidence admissibility,
” the analysis applied before 2011 should still be
useful for cases after the restyling. Fed.R.Evid.