1

The Honorable George F. Gunn, Jr., United States District

Judge for the Eastern District of Missouri.

___________

No. 95-2756

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Larry R. Shurn, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: November 27, 1995 

 Filed: January 26, 1996 ___________

Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Larry R. Shurn appeals from the district court's1 order

revoking his supervised release. Shurn argues the admission of

hearsay testimony at his revocation hearing violated his right to

confront adverse witnesses. We affirm.

As relevant here, Shurn's release conditions required that he

refrain from committing any further crimes. At Shurn's revocation

hearing, the government presented the testimony of police officer

Kenneth Lige regarding a call he received that someone was trying

to break into a house. Lige testified that he arrived at the house

within thirty seconds of the call, observed a man running from the

front porch, and saw that the front door was open and a window next
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to the door was broken. Lige handcuffed the man and placed him in

the police car for safety purposes, pending further investigation.

Lige testified that Shurn was the man he handcuffed.

Lige testified further that when he entered the house, he

found two women "crying hysterically"; one of the women appeared

badly injured. Over Shurn's hearsay objection, Lige testified that

the women asked, "Is he still around?" When Lige described the man

he had placed in the police car, the women said, "That's him,

that's him," and were relieved. The women also looked out the door

and confirmed that the man in the police car was Shurn. The

remainder of Lige's testimony--admitted over Shurn's continuing

hearsay objection--involved statements the two women made to him

about what allegedly occurred before Lige arrived on the scene,

including statements that Shurn kicked the door and broke the

window after beating one of the women.

The district court found that Shurn had violated the release

condition prohibiting him from committing further crimes, and two

other release conditions not at issue here. The court revoked

Shurn's supervised release and ordered him to be returned to

custody for twelve months and one day.

During a hearing to revoke or modify probation or supervised

release, the accused must be given "the opportunity to question

adverse witnesses." Fed. R. Crim. P. 32.1(a)(2)(D). As we have

noted, however, the right to question adverse witnesses provided by

Rule 32.1(a)(2)(D) is not absolute and has its basis in the due

process clause cases governing revocation of parole or probation by

the states. See United States v. Zentgraf, 20 F.3d 906, 909 (8th

Cir. 1994).

Although the Federal Rules of Evidence do not apply to a

supervised release revocation hearing, for purposes of analysis, we

conclude the victims' initial identification of Shurn as the
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perpetrator of the attempted break-in and damage to the house fall

within the "excited utterance" exception to the hearsay rule, which

makes availability of the declarant immaterial. See Fed. R. Evid.

803(2). As the excited utterance exception is deeply rooted in the

common law, the reliability of the identification was sufficient to

satisfy any constitutional concern. See White v. Illinois, 502

U.S. 346, 356-57 (1992); Stidum v. Trickey, 881 F.2d 582, 585-86

(8th Cir. 1989), cert. denied 493 U.S. 1087 (1990). Because such

evidence would be admissible at a criminal trial, and given the

Supreme Court's expressed view that "there is no thought to equate

this second stage of parole revocation to a criminal prosecution in

any sense," we see no violation of Shurn's rights by the court's

use of the identification testimony. Morrissey v. Brewer, 408 U.S.

471, 488-89 (1972).

We also conclude that the victims' admissible identification,

coupled with Lige's observations upon his arrival, including

photographs introduced showing the damage, sufficiently

demonstrated that Shurn breached the terms of his supervised

release. Upon our review of the revocation-hearing transcript, we

are confident that the district court did not consider the other

hearsay statements in reaching its decision, and thus find harmless

error in the admission of that testimony. See United States v.

Frazier, 26 F.3d 110, 114 (11th Cir. 1994). Accordingly, we

affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.