U.S. v. Zuniga

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in admitting out-of-court statement by individual who claimed that he saw defendant point gun at victim’s head in backyard area of tavern. Said statement qualified as excited utterance, where individual witnessed event, came back into tavern within one minute and whispered to another to call police. Fact that defendant whispered utterance did not detract from startling nature of incident. Moreover, declarant need not be completely incapable of deliberative thought at time of utterance in order for it to be admissible under excited utterance exception to hearsay rule. Also, any error was harmless since there was other evidence to support finding that defendant unlawfully possessed weapon.