FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. No. 6:13-CR-00069-RAW-1)
William P. Widell, Jr., Assistant Federal Public Defender
(Julia L. O'Connell, Federal Public Defender, and Chance
Cammack, Assistant Federal Public Defender, with him on the
brief), Eastern District of Oklahoma, Muskogee, Oklahoma, for
Richard A. Friedman, Appellate Section, Criminal Division,
United States Department of Justice, Washington, D.C. (Leslie
R. Caldwell and Sung-Hee Suh, Deputy Assistant Attorney
Generals, United States Department of Justice, Washington,
D.C., and Mark F. Green, United States Attorney, and Linda
Epperley, Assistant United States Attorney, Eastern District
of Oklahoma, Muskogee, Oklahoma, with him on the brief), for
BRISCOE, McKAY, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
district court sentenced Defendant David Magnan, a Native
American, to life imprisonment times three after a jury
convicted him of murdering Lucilla McGirt and two others in
Indian Country in violation of 18 U.S.C. § 1153.
Defendant shot McGirt twice and left her to die, paralyzed
from the chest down, as part of an execution-style slaying
during which he shot four individuals. McGirt died, but not
before she identified Defendant as her assailant. On three
separate occasions ranging from approximately two to five
hours after the shooting, first a police officer, then an
emergency medic, and finally McGirt's sister, heard
McGirt identify Defendant as the man who shot her. At trial,
these three individuals testified to McGirt's respective
statements over Defendant's hearsay objections. Defendant
now appeals his judgment of conviction. He asserts the
district court abused its discretion in ruling McGirt's
statements constituted excited utterances admissible under
Rule 803(2) of the Federal Rules of Evidence. Our
jurisdiction arises under 28 U.S.C. § 1291. We
early morning hours of March 2, 2004, after a day of
drinking, Defendant Magnan, Aaron Wolf, and Aaron's
uncle, Redmond Wolf, Jr., drove to the home of Jim Howard in
rural Indian Country near Seminole, Oklahoma. Aaron's .40
caliber semi-automatic handgun, loaded with hollow point
bullets, was in the front center console of Defendant's
vehicle. Defendant, a friend of Aaron and former house guest
of Howard now persona non grata, was driving. Shortly after
midnight, Aaron had phoned Howard's residence and, though
he later denied it, threatened to kill Howard over an ongoing
family dispute regarding Howard's ownership of the home.
Howard had been married to Aaron's aunt, Margie Wolf, and
inherited the property when she died. Apparently this did not
sit well with some members of the Wolf family, including
Eric Coley, Lucilla McGirt, Karen Wolf, and Karen's
daughter, Amy Harrison, were inside the residence as
Defendant's vehicle approached. Karen was Margie and
Redmond's sister and Aaron's aunt. Coley and McGirt,
both friends of Howard, were unrelated to the Wolfs. Howard
and his guests had been celebrating Coley's birthday and
drinking, at least since early evening. Coley and Harrison
heard the vehicle and went outside to meet it. Harrison
greeted Redmond, her uncle, and Aaron, her cousin. Meanwhile,
Coley informed Defendant that he and his friends were not
welcome and should leave. The two men engaged in a scuffle.
Coley wrestled Defendant to the ground. Defendant pulled a
gun and shot Coley in the abdomen. Coley testified: "As
[Defendant] was getting up, I seen him pull something out of
his side and he shot me." Rec. vol. II, at 126.
"remember[s] looking down and seeing smoke coming out of
my shirt." Id. Coley started to run. Despite a
bad leg, Defendant briefly gave chase. Coley ran into the
nearby woods to hide, but not before banging on the windows
of the house to warn the others. Seconds later, Coley heard
"around seven booms" or "shots" come from
inside the house. Id. at 130. Harrison initially ran
into the woods but then, in a panic, returned and sought
cover around the house. Harrison heard "about four"
shots come from inside. Id. at 182-83. Aaron could
not recall how many shots he heard but remarked: "I know
there was a lot." Id. at 412.
greeting Harrison, Redmond was returning to Defendant's
vehicle when he heard a shot: "I seen David kind of
leaning over . . . and I heard Eric Coley grunting."
Id. at 250. As Coley fled, Redmond witnessed
Defendant enter Howard's residence. Redmond heard what
"[s]ounded like five" gunshots. Id. at
252-53. Redmond then entered the house: "As I entered
the house, I seen David Magnan walking back and forth, he had
a gun in his hand, and I looked on to my right side and I
seen my brother-in-law on the [sofa] bed there. . . . As I
approached . . . his bed, I just heard a gurgling sound that
was coming out." Id. at 253.
was outside with Redmond when they heard the gunshots. At no
point did Redmond see Aaron inside the house. Aaron stated he
was preparing to go inside and could see Howard on the sofa
bed through the screen door when Defendant and Redmond exited
the residence. The three men promptly fled in Defendant's
vehicle. As they sped off, Defendant threw gun magazines out
of the vehicle. Three or four miles later, Defendant turned
onto a dirt road and stopped. He wiped the gun with a towel,
wrapped the gun in the towel, and instructed Aaron to hide
the gun under a pile of bricks off the side of the road.
Aaron did so. A while later, Defendant asked Aaron to call
the police and report the gun stolen. Aaron refused. Redmond
led authorities to the gun the next day. Forensics
subsequently established that Aaron's gun was, in all
likelihood, the sole murder weapon.
the three men fled, Coley met up with Harrison near the
house. Coley told Harrison he had been shot and was going in
the house to have a look. Coley first approached Howard and
determined he was dead. He then went to check on Karen Wolf
and Lucilla McGirt in the bedroom. Karen was unresponsive and
Lucilla was "sitting against the wall, she was needing
some water." Id. at 133. After briefly speaking
to Lucilla, Coley tried to close the bedroom door but by this
time Harrison too had come inside to look. Harrison first
shook Howard to see if he was awake. "And I felt this
jelly blood on my hand." Id. at 184. After
rinsing her hands, Harrison went to check on her mother.
"My mom was facing westward on the floor. Lucilla was
laying towards her, looking towards her. I rolled my mom
over. I said, 'Mom, Mom, are you awake?' I rolled her
over and seen blood coming out of her eyes, nose, and
mouth." Id. At this point, Harrison, in
hysterics, ran to the kitchen where she found Coley. Coley
told Harrison to call for help just before he collapsed on
the kitchen floor. In a state of panic, Harrison called 911.
Jack Thompson of the Seminole Police Department received a
911 dispatch around 2:44 a.m. informing him that four
individuals had been shot at Howard's residence in a
rural location. Thompson and two other officers arrived on
scene about 3:19 a.m. or shortly thereafter. Meanwhile, medic
Anke Bernhardt received an emergency call around 3:00 a.m.
She arrived on the scene with other medics about the same
time as law enforcement. The medics waited outside about
twenty minutes while the officers secured the crime scene and
made sure the medics could safely enter the residence.
first encountered Coley in the kitchen: "There was a
large male subject laying on the floor and he was yelling and
moaning that he had been shot in the gut." Id.
at 292. Coley told Thompson "he thought he was going to
bleed out." Id. Thompson next turned to Howard:
"[I]t was very obvious he had been shot it looked like
twice. There was a lot of blood and I could tell he was dead
. . . ." Id. at 293-94. In the front bedroom,
Thompson saw two female subjects lying on a floor mattress.
Thompson described the entire scene as "tense, "
"[k]ind of like something out of a movie."
Id. at 294-95.
The first lady I could tell was definitely dead . . . . Then
the second one, Ms. McGirt, was laying to her side and I
wasn't for sure with her so I leaned over . . . the
deceased lady . . . and I was shining my light on her, . . .
. And at that time she kind of moaned and moved just a little
and, . . . just reactions . . . I kind of drew my fist back,
you know, out of fear, . . . . I had just seen all these
people had been shot . . . but then I realized she's the
victim. At this time I tell the medics that this one's
alive and then I kind of back off.
Id. at 295.
was in the bedroom when the medics began rendering aid to
McGirt. Due to poor lighting, Thompson assisted the medics by
shining his flashlight on their subject. McGirt was bleeding.
Medics discovered a bullet wound in the back of her right
shoulder. Bernhardt observed that McGirt "appeared very
anxious. She was having trouble breathing. She looked very
nervous and scared, visibly." Rec. vol. I, at 572.
"Her vital signs were unstable and her skin was very
pale." Id. at 573. "Her voice was
shaky." Id. She had difficulty communicating
"because she was short of breath." Id.
McGirt indicated she was in pain. "She was unable to
move any of her extremities or her body parts from the nipple
line down." Id. McGirt smelled of alcohol but
did not appear intoxicated. Medics placed an occlusive
dressing on McGirt's shoulder wound and then applied a
C-collar and backboard to stabilize her. They provided her
with oxygen and initiated two large IVs, standard protocol
for a trauma patient, keeping one IV wide open to stabilize
her blood pressure.
Bernhardt administered first aid, another medic identified
only as Amy sought to calm and orient McGirt by speaking with
her in the bedroom. At trial, Officer Thompson, over
Defendant's hearsay objection, testified to their
Q. And you said that [the medics] were trying to engage in
conversation with her as they were treating her . . . ? A.
Q. Okay. And did you hear what she was asked and what her
response was to the questions the EMTs were asking her?
Q. And can you please explain what you heard?
* * *
A. The medic had asked her who had shot her.
Q. What did she say?
A. She had said Dave Magnan or Magna. . . . I didn't know
if it was 'Magna' or 'Magnan' but it was
something like that.
Q. Were you able to understand that well enough to know it
was Dave ...