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  • WisBar News
    February 20, 2015

    Federal Appeals Court: Admitting Child’s Voicemail as Excited Utterance Was Error

    Joe Forward
    Legal Writer

    Feb. 20, 2015 – The U.S. Court of Appeals for the Seventh Circuit has ruled that it was error for the district court to admit into evidence, as an excited utterance, a nine-year-old child’s voicemail indicating the criminal defendant physically assaulted her mother.

    The defendant, Dennis Moslavac, was on supervised release from prison for possessing cocaine with intent to distribute in violation of federal law when he allegedly battered two women and violated other conditions of supervised release.

    To prove that he assaulted one woman, Jina Kizivat, the government relied on the testimony of Kizivat’s ex-husband, Walter Sturgeon, the father of Kizivat’s nine-year-old daughter. The daughter allegedly witnessed the battery and called Sturgeon about it.

    Sturgeon had dropped his daughter off at Kizivat’s on the morning of the alleged incident. Later in the day, the daughter called Sturgeon and said Moslavac hit Kizivat in the foot with a metal object. She also left a voicemail on Sturgeon’s phone.

    The federal prosecutor questioned Sturgeon about the daughter’s statements and played the voicemail at the parole revocation hearing. The daughter did not testify.

    The district court judge from the Eastern District of Wisconsin determined the voicemail and the daughter’s out-of-court statements to Sturgeon were “excited utterances” and thus admissible as evidence. Excited utterances are exceptions to the hearsay rule.

    Ultimately, Moslavac was sentenced to nine months in prison with another two years of supervised release. The court considered all parole violations, including the alleged assault against Kizivat, to impose the sentence. Moslavac appealed.

    In United States v. Moslavac, No. 14-2866 (Feb. 18, 2015), a three-judge panel for the Seventh Circuit Appeals Court reversed, concluding the district court admitted hearsay evidence as excited utterances without a balancing test required under federal rules.

    Federal Rule of Criminal Procedure 32.1(b)(2)(C) says a defendant must have “the opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”

    The panel noted that under a 2014 case – United States v. Jordan, 742 F.3d 280 (7th Cir. 2014) – the court clarified that Rule 32.1(b)(2)(C) requires a district court to explicitly “balance the defendant’s constitutional interest in confrontation and cross-examination against the government’s stated reasons for denying them.”

    In this case, the district court did not explicitly balance those interests. The panel noted that the district judge found the daughter’s statements reliable and credible without requiring the government show why the daughter was not produced as a witness.

    Finally, the panel ruled that the error was not harmless. “In light of the considerable and apparent weight that the district court gave to the Kizivat battery during Moslavac’s sentencing, we cannot conclude that Moslavac would have received the same sentence notwithstanding the Kizivat incident,” wrote Judge Joel Flaum.

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