Conviction Overturned on Excited Utterance Ruling

I recently had a conversation with a local trial judge in Middle Tennessee. He spoke candidly when he admitted that his greatest worry when he took the bench was ruling on objections quickly and thoughtfully. A veteran judge advised him not to worry. He said that even if you rule in error, convictions rarely, if ever, get overturned based on evidentiary objections and the error is almost always harmless. Errors in the admission of evidence are subject to harmless error analysis meaning that a final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process. Tenn. R. App. P. 36(b). The veteran judge’s statement was generally true, but was it true in all cases? A recent Tennessee case affirmatively answered that question in the negative.

In State of Tennessee v. Timothy Bishop, No. M2015-00314-CCA-R3-CD , 2016 WL 7324307 (Tenn. Crim. App. Dec. 16, 2016), Timothy Bishop was convicted at trial of two counts of child abuse, a Class D Felony. In this matter, the Court of Criminal Appeals of Tennessee ruled that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the defendant was responsible for his bruises. The appellate court stated that not only did the trial court err admitting the hearsay statements but the error was not harmless. Since the only direct evidence at trial that the defendant hit the alleged victim came from the statements that were improperly admitted as excited utterances, the convictions were reversed and a new trial was granted.

The moral of the story is that evidentiary objections are crucial in the trial of your case and  must be made at the proper times during trial to preserve the record on appeal and to insure a fair trial. It is important to hire a trial lawyer with experience and knowledge of evidentiary rules to fight for you.

 

Blake Bratcher is an Associate Attorney at Freeman & Fuson