Facts




At approximately 9:00 p.m. on September 11, 1982, Officer Robert Gallant of the Berwick Police Department stopped an automobile on Route 9 to investigate an argument between two of its passengers, Elizabeth Reid and her brother, Roger Turgeon. The vehicle pulled off the road into the driveway of the Dyer residence on the northwesterly side of Route 9. As Officer Gallant spoke with Turgeon, Reid walked out of the driveway onto the highway, with the intention of hitchhiking to her home in Berwick. Recognizing the danger she was in, Gallant went to where Reid was standing in an attempt to convince her to return to the Dyer driveway. Officer Gallant succeeded in getting Reid to move three feet from the edge of the pavement onto the gravel shoulder. Gallant stood between Reid and the paved roadway.




During the same period of time, defendant Longley was driving his AMC Hornet southwest on Route 9 towards Berwick. The trial court specifically found that because of the amount of beer and marijuana Longley had consumed that day, he was operating his vehicle while under the influence of alcohol and drugs. The record fully supports that finding. At 9:10 p.m. Longley's vehicle drove past the Dyer home and struck Officer Gallant, causing him fatal injuries. Elizabeth Reid was also injured. Longley pulled his car to the side of the highway some 600 feet beyond the scene of the accident. He and his two passengers got out of the Hornet and began to walk toward the Dyer home. Jack Henry, one of Longley's passengers, convinced the others that a thrown rock was responsible for the thump they had heard and that they should drive on. They returned to the car and did so.




The next day, after hearing about the officer's death, defendant Longley sought out Chief Perron of the Somersworth, New Hampshire, police department and volunteered information concerning his involvement in the accident. Longley then turned himself in to the Berwick police.




I. Excited Utterance




Over defendant's objections, the trial justice permitted four witnesses to testify about statements made by Elizabeth Reid at the scene soon after the accident. Reid said: " he son of a bitch came right off the road and hit us" and "a car hit us, it's like they did it on purpose." On appeal, defendant Longley contends that the justice erred in ruling that Reid's statements came within the excited utterance exception to the hearsay rule, M.R.Evid. 803(2). We reject defendant's contention.




The trial court must find three foundational facts for the admission of a hearsay statement as an excited utterance: (1) that a startling event occurred, (2) that the hearsay statement related to the startling event, and (3) that the hearsay statement was made while the declarant was under the stress of excitement caused by that event. State v. Walton, 432 A.2d 1275, 1277 (Me. 1981), interpreting M.R. Evid. 803(2). We review the trial justice's foundational finding by the "clearly erroneous" test. State v. Hafford, 410 A.2d 219, 220 (Me. 1980).




Prior to the fatal accident Reid had experienced a difficult day. She had attended an afternoon wedding where she consumed seven or eight beers, and she drank an additional two or three beers later in the day. In the minutes preceding the accident she was arguing with her brother and was so upset that she attempted to hitchhike home. During her brief conversation with Officer Gallant, Reid began to cry. Given this "stressful" situation, defendant on appeal


Defendant's contention lacks merit. The stress felt by the declarant need not be solely the product of a single event. "The trustworthiness of an excited utterance . . . is based upon th

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