United States v. Elem

845 F.2d 170 (8th Cir. 1998)

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Nature of the Case

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Facts

A dispute occurred between Charles Evans and D over the ownership of a backgammon set. According to Evans, D threatened him with a gun. The police were called and as Evans was explaining to the police what had happened, D drove by in his car. Officer Reed followed d's car and saw d throw a 'silver-colored object' and a brown paper bag from his car. Officer Reed retrieved the bag and discovered a 32-cal. semi-automatic pistol. D was pulled over and questioned. D made several exculpatory statements to the officers. Officer Reed went back, picked up Evans, and brought him to the 'arrest scene.' Evens identified D, the pistol, and the backgammon set. D was indicted and tried. D moved pre-trial in a limine motion to exclude certain exculpatory statements made by D to the police at the time he was taken into custody. D, in response to a police question about whether the gun was his, answered, 'No,' and in response to a police inquiry about the flourishing of a weapon, D answered, 'You won't be able to make that.' D contends that these statements were admissible as a part of the res gestae or as excited utterances under Fed. R. Evid. 803(2). The district court disagreed and excluded both statements as impermissible hearsay. D was convicted and appealed.