                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________          FILED
                                                U.S. COURT OF APPEALS
                             No. 09-15412         ELEVENTH CIRCUIT
                                                      JUNE 17, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                   D. C. Docket No. 08-80016-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

HERON STEPHERSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 17, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

     On May 26, 2003, in the early morning hours, three masked men robbed the
West Palm Beach Radisson Hotel; one of them shot and killed an unarmed hotel

security guard. In 2004, one of the robbers, Reginald Bannister, was arrested for

drug trafficking, and on a plea of guilty, was sentenced to prison for 18 years. At

some point, he decided to cooperate with law enforcement, and, in the process,

learned that a half-brother, Harold Stepherson had been charged with the Radisson

Hotel robbery. From Harold, law enforcement learned that Bannister and another

half-brother, appellant Heron Stepherson, were the other robbers.

       In May 2006, appellant and Bannister were indicted under the Hobbs Act, 18

U.S.C. § 1951(a), for conspiracy to commit the Radisson Hotel robbery (Count 1)

and for committing the robbery (Count 2).1 The case against Bannister was

disposed of on a guilty plea, and appellant stood trial before a jury. Bannister and

Harold Stepherson testified for the Government, and the jury found appellant

guilty of the two Hobbs Act offenses. He now appeals his convictions, raising two

points. One challenges an evidentiary ruling; the other challenges the trial court’s

decision granting the jury’s requests during deliberations that certain testimony be

read. We consider these challenges in order.

                                               I

       Maria Hawkins, the night auditor, was on duty at the hotel’s front desk when


       1
         The indictment also charged appellant with violating 18 U.S.C. §§ 924(c) (Count 3),
922(g) (Count 4). He was acquitted on those counts.

                                               2
the robbers entered the hotel. After the robbers left the premises and the police

arrived, she told Officer Harrell that there were three robbers. Over appellant’s

objection, the district court allowed Harrell to repeat her statement to the jury as an

excited utterance under Federal Rule of Evidence 803(2). Appellant contends that

the court abused its discretion in doing so, claiming that the excited utterance

exception did not apply because the court failed to make the requisite finding that

Hawkins made the statement without having any opportunity to reflect on it, and

the record is not clear regarding how long she had to reflect on the number of

assailants prior to speaking to Harrell. Because this testimony concerned a

material issue in the trial and was emphasized when the court allowed it to be read

back to the jury during their deliberations, he asserts that his convictions must be

set aside and a new trial ordered.

      We review a district court’s hearsay rulings for abuse of discretion. United

States v. De La Mata, 266 F.3d 1275, 1300-01 (11th Cir. 2001). “[W]hen

employing an abuse of discretion standard, we will leave undisturbed a district

court’s ruling unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.” Guideone Elite Ins. Co. v. Old

Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1325 (11th Cir. 2005). Even if

the district court’s reasons for overruling a hearsay objection are not clear from the



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record, it does not abuse its discretion by admitting the statement if there is an

applicable exception. See United States v. Jiminez, 564 F.3d 1280, 1288-89 (11th

Cir. 2009); United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006).

       In general, hearsay is inadmissible, but there are a number of exceptions.

Fed. R. Evid. 802. One is the excited utterance exception, which allows into

evidence a “statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.”

Fed. R. Evid. 803(2). The critical inquiry is not the amount of time that has passed

since the event but rather whether the “declarant was still in a state of excitement

resulting from the event” when she made her declaration. See United States v.

Cain, 587 F.2d 678, 681 (5th Cir. 1979) (citation omitted).2

       Moreover, the rules exclude from the definition of hearsay a prior statement

by a witness if (1) the “declarant testifies at the trial . . . and is subject to cross-

examination concerning the statement,” and (2) the statement is “consistent with

the declarant’s testimony and is offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive.” Fed.

R. Evid. 801(d)(1)(B). A prior consistent statement is admissible only if it was


       2
        This Court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc).


                                               4
“made before the alleged influence, or motive to fabricate, arose.” Tome v. United

States, 513 U.S. 150, 158, 115 S.Ct. 696, 701, 130 L.Ed.2d 574 (1995). Moreover,

such statements are “admissible non-hearsay only if they are offered to rebut a

specific allegation of recent fabrication, not to rehabilitate credibility that has been

generally called into question.” United States v. Drury, 396 F.3d 1303, 1316 (11th

Cir. 2005) (citation omitted; emphasis in original).

       We find no abuse of discretion in the challenged ruling. Although the

district court did not identify the basis for its decision at the time it overruled

appellant’s objection, the record supports its determination that the testimony was

admissible. First, Hawkins’s statement was admissible as an excited utterance.

While the testimony does not establish exactly how much time had passed between

the robbery and Hawkins’s statement to Harrell, it does establish that she was still

under the stress of the event. See Cain, 587 F.2d at 681. Second, Hawkins’s

statement was also admissible as a prior consistent statement. She testified at trial

and was subject to cross-examination. During cross-examination, appellant’s

counsel implied that she was only testifying that there were three assailants

because the police had exerted an improper influence on her, that her statement

was of recent fabrication.. Her statement to Harrell was consistent with her trial

testimony, and was thus admissible to rebut the point appellant’s counsel had



                                             5
made on cross-examination, that her statement had been recently fabricated.

Finally, she made the statement to Harrell before the alleged improper influence

arose; the prosecution would have had no reason to exert any influence on her

testimony until years later, after Bannister and Harold Stepherson had confessed

and identified appellant as a third participant in the robbery.

                                            II

      Appellant argues that the district court improperly emphasized certain pieces

of evidence by allowing testimony to be read back to the jury. The court granted

the jury’s request that certain portions of Bannister, Harold Stepherson, and

Harrell’s testimony be read back to them. Appellant asserts that if the court was

going to allow that testimony to be read to the jury, then the relevant testimony of

other witnesses should also have been read. He concludes that because of the

difficulties inherent in determining what to read back to the jury, “the better

approach” would have been to instruct the jury to rely on its collective memory.

The court’s failure to do this deprived him of a fair trial.

      We review “a trial judge’s response to a jury query during deliberations for

an abuse of discretion.” United States v. Delgado, 56 F.3d 1357, 1363 (11th Cir.

1995) (citation omitted). The district court has “broad discretion when responding

to a jury request that evidence be reread.” Id. at 1370 (citation omitted). Where



                                            6
the district court gives the matter proper consideration, it may be right regardless

of which course of action it chooses. Id.

      Where the district court permits testimony to be read back to the jury, it does

not abuse its discretion if it ensures that the testimony is “presented in a fair and

complete manner and placed in its proper context” while still limiting the rereading

to testimony that is “closely related to the material requested by the jury.” United

States v. Alfonso, 552 F.2d 605, 619 (5th Cir. 1977). Moreover, we have held that

the district court did not abuse its discretion where it asked the jury to be more

specific in its requests and then had the direct, cross, and recross testimony of three

witnesses read back to the jury but refused to allow other testimony impeaching

those witnesses to be read back as well. United States v. Loyd, 743 F.2d 1555,

1567 (11th Cir. 1984).

      Here, the district court considered the benefits and drawbacks of the

available alternatives and took steps to ensure that undue emphasis was not placed

on the testimony that was read back to the jury. Therefore, while appellant asserts

that a better approach would have been to instruct the jury to rely on its collective

recollection, the court did not abuse its discretion by allowing those read backs.

      AFFIRMED.




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