The HONORABLE DAVID S. DOTY, United States District *

Judge for the District of Minnesota, sitting by

designation.

United States Court of Appeals

For the Eighth Circuit

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No. 96-1401

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri

Steven B. Sewell, *

*

Appellant. *

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Submitted: June 11, 1996

 Filed: July 26, 1996

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Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and DOTY ,

*

District Judge.

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DOTY, District Judge.
 The Honorable Stephen N. Limbaugh, Judge, United States

1

District Court for the Eastern District of Missouri.

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I.

Defendant Steven Sewell ("Sewell") appeals from his conviction

under 18 U.S.C. §§ 922(g)(1) and 924(e)(1), for possessing a

firearm as a thrice-convicted felon. We affirm. 1

Sewell's conviction arises from a traffic stop made on or

about February 24, 1995. Defendant consented to a search of the

passenger compartment, which revealed a loaded ammunition clip.

Defendant claimed to have no knowledge of the origins of this clip.

When asked whether there were any weapons in the trunk of the car,

defendant denied that there were. A subsequent search revealed a

nine-millimeter semi-automatic pistol which had been placed atop a

pile of clothing in the trunk. When this fact was brought to

defendant's attention while he waited in a patrol car, he stated

that the gun belonged to his brother and he had not known it was in

his trunk. 

At trial, the government brought a motion in limine to exclude

Sewell's statements as hearsay under Fed. R. Evid. 801(c) and 802.

In response, defendant argued that the statements were admissible

within the exception for "excited utterances". Fed. R. Evid.

803(2). The court orally granted the motion, stating that he

didn't believe that a person denying knowledge of a firearm, when

one is found, is an utterance that had been created by a physical

shock, stress or nervous excitement absent testimony to that

effect.
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Defendant's continuing objection to the ruling was noted.

Trial Transcript at 27. Sewell testified on his own behalf, and

stated that he did not have knowledge of the origins of the

ammunition clip. However, he did not testify regarding his

contemporaneous statement that he had not known the gun was in his

car. Sewell was convicted and sentenced. He argues that his

contemporaneous statement should have been admitted as an excited

utterance, and the trial's court's refusal to do so "severely

prejudiced" him.

II.

The parties agree that this court may reverse the trial court

only upon a showing that it has abused its discretion in excluding

the testimony as hearsay. U.S. v. Martin, 59 F.3d 767, 769 (8th

Cir. 1995). No such showing has been made here.

The justification for the "excited utterance" exception, as

this Circuit has noted, derives from the teaching of experience

that the stress of nervous excitement or physical shock "stills the

reflective faculties," thus removing an impediment to truthfulness.

U.S. v. Elem, 845 F.2d 170, 174 (8th Cir. 1988) (quoting 6 Wigmore,

Evidence § 1747, at 195 (Chadbourne rev. 1976)):

Since this utterance is made under the immediate and

uncontrolled domination of the senses, and during the

brief period when considerations of self-interest could

not have been brought fully to bear by reasoned

reflection, the utterance may be taken as particularly

trustworthy (or at least lacking the usual grounds for

untrustworthiness), and thus expressing the real tenor of
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the speaker's belief as to the facts just observed by

him.

Id.

Defendant's argument that he was merely reacting naturally to

the "shock" of an "extraordinarily startling event" - i.e., the

discovery of a weapon in his possession - is unconvincing. Where

incriminating evidence is discovered in one's possession, it

requires only the briefest reflection to conclude that a denial and

plea of ignorance is the best strategy. This hardly comports with

the spirit of disinterested witness which pervades the rule. There

is no evidence that the defendant's self-serving statement derived

from an uncontrolled "excitement" experienced while learning of the

evidence against him. The trial court's ruling reflects reasoned

consideration of the requirements of the rule and is correct.

Affirmed.

A true copy.

Attest:

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