## Facts

- Orville Marrowbone, a tribal member, was prosecuted for a sexual assault occurring on the Cheyenne River Indian Reservation under 18 U.S.C. §§ 1153, 2242(2)(B), and 2246(2)(A).
- The alleged victim, L.D., a sixteen-year-old male, testified Marrowbone provided alcohol, L.D. became intoxicated and passed out, and L.D. later awoke to Marrowbone engaging in anal sex with him.
- After the incident, L.D. ran home and told his mother; she called tribal police seeking L.D.’s arrest for unlawful intoxication. Police responded after a second call about two hours later and arrested L.D.
- While in custody and after being transferred between officers, L.D. made statements describing the assault and expressing shame; two officers later testified to these out-of-court statements at trial.
- Marrowbone objected to the officers’ testimony as hearsay; the district court admitted it under the excited utterance exception (Fed. R. Evid. 803(2)), without limiting instructions.
- Similar accounts were also presented through L.D.’s trial testimony and testimony from L.D.’s mother and a nurse.
- A jury convicted Marrowbone in federal district court; he appealed, raising evidentiary, jury-selection, and other trial-error claims.

## Issues

1. Whether the district court erred by admitting L.D.’s custodial statements to officers as excited utterances under Fed. R. Evid. 803(2).
2. Whether any hearsay error required reversal or was harmless given other trial evidence.
3. Whether the prosecutor’s peremptory strikes of Native American prospective jurors violated Batson v. Kentucky.
4. Whether other trial rulings (including leading questions and exclusion of defense evidence) warranted reversal.

## Decision

- The Eighth Circuit held the district court abused its discretion by admitting L.D.’s statements to the officers as excited utterances because L.D. was no longer under the stress of excitement when he spoke.
- The court affirmed the conviction because the evidentiary error was harmless: the officers’ testimony was largely cumulative of L.D.’s own testimony and similar testimony from other witnesses.
- The court rejected the Batson challenge, deferring to the trial court’s acceptance of race-neutral explanations and noting the defense withdrew part of its objection.
- The court found no reversible error in the remaining asserted trial rulings.

## Legal Principles

- Under Fed. R. Evid. 803(2), an excited utterance requires a statement relating to a startling event made while the declarant remains under the stress caused by the event.
- In assessing “stress of excitement,” courts consider the time lapse and intervening events, whether statements were prompted by questioning, the declarant’s age and condition, and the nature and subject matter of the statements.
- Statements made hours after an event, after intervening circumstances, and in custodial settings—especially where the declarant may have a motive to shift blame—may fall outside Rule 803(2).
- Erroneous admission of hearsay may be harmless when substantially similar evidence is properly admitted through other witnesses and the error does not substantially influence the verdict.
- Under Batson, once race discrimination is alleged, the prosecution must provide race-neutral reasons for strikes; appellate review gives substantial deference to the trial court’s credibility findings.

## Conclusion

The court concluded that admitting the victim’s custodial statements as excited utterances was error because the statements were not made under continuing stress, but affirmed the conviction because the testimony was cumulative and the error harmless; it also upheld the jury selection and other challenged trial rulings.


United States v. Marrowbone, 211 F.3d 452 (8th Cir. 2000)