govinfo:USCOURTS-kyed-5_23-cr-00109-2

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
CENTRAL DIVISION 
(at Lexington) 
 
UNITED STATES OF AMERICA,  
 
 Plaintiff, 
 
V. 
 
TANNER M. ABBOTT,  
 
Defendant. 
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Criminal Action No. 5: 23-109-DCR 
 
 
 
MEMORANDUM OPINION 
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 During testimony presented on this date, Defendant Tanner Abbott sought to offer into 
evidence recordings of police radio calls he made to dispatch on or about January 20, 2021, 
during interaction with and subsequent arrest of Destin Newman and Clay Ballard .  The 
recordings are unintelligible to some degree, but Abbott can be heard advising dispatch to send 
“another unit” and to “send EMS.”  According to his counsel, Abbott also can be heard telling 
dispatch that “he has a fighter” or that there is “someone fighting with him ,” in reference to 
Newman.  The defendant sought to introduce the recordings under Rule 803(1), (2), and (3) of 
the Federal Rules of Evidence.  The undersigned determined that none of the cited exceptions 
apply and, therefore, the evidence was not admitted. 
  The statements in question do not constitute excited utterances.  Rule 803(2) defines 
an excited utterance as “[a] statement relating to a startling event or condition made while the 
declarant was under the stress of exciteme nt caused by the event or condition.”  “To satisfy 
the exception, a party must show three things.  First, there must be an event startling enough 
to cause nervous excitement.  Second, the statement must be made  before there is time to 
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contrive or misrepresent.  And third, the statement must be made while the person is under the 
stress of the excitement caused by the event.”  United States v. Arnold, 486 F.3d 177, 184 (6th 
Cir. 2007).  All three inquiries bear on the ultimate question of whether the statement was “the 
result of reflective thought or whether it was a spontaneous reaction to the exciting event.”  Id.  
 “Whether events qualify as startling depends upon assessment of their shock value on 
the declarant.”  United States v. Scott , 69 F. App’x 317, 321-22 (6th Cir. 2003)  (cleaned up) 
(citation omitted).  While police officers undoubtedly can become startled during their 
apprehension of suspects, there is no indication that occurred here.  The defendant was 
physically much larger than Newman and Ballard, no weapons were present at the scene, and, 
importantly, the defendant’s voice on the recording appeared extremely calm.    
 Rule 803(3) provides an exception to the rule against hearsay for statements of  the 
declarant’s “[t]hen existing mental, emotional, or physical condition.” To be admissible under 
this exception, the statement must have been contemporaneous with the declarant’s experience 
of the mental, emotional, or physical condition such that the declarant did not have “an 
opportunity to reflect and possibly fabricate or misrepresent his thoughts.”  United States v. 
LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995).  While various conclusions may be reached 
based on Abbott’s statements to dispatch, the statements themselves to not indicate Abbott’s 
then existing mental, emotion, or physical condition.  And counsel failed to provide any 
developed argument explaining why the statements could come in under this exception.  See 
Rule 803 Advisory Committee Notes (observing that “[e]xception (3) is essentially a 
specialized application of Exception [paragraph] (1), presented separately to enhance its 
usefulness and accessibility.”) 
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 Finally, Rule 803(1) provides an exception to the rule against hearsay for present sense 
impressions.  This exception co ncerns statements describing or explaining an event or 
condition, made while or immediately after the declarant perc eived it.  Fed. R. Evid. 803(1).  
Abbott’s statements to advising dispatch to send “another unit” and to “send EMS” do not 
describe or explain an event or condition and, therefore, would not come within this exception.   
 To the extent Abbott’s “fighter” statement might be admissible under Rule 803(1), it is 
within the Court’s discretion to exclude the evidence.  The present sense impression exception 
is grounded on the notion that a person is more likely to speak truthfully before he has time to 
reflect.  Miller v. Stoval, 742 F.3d 642, 650 (6th Cir. 2014).  The defendant’s attorney contends 
that Abbott informed dispatch that Newman was fighting with him prior to using a “closed 
empty hand technique” to gain compliance.  However, there is insufficient proof in the record 
indicating when Abbott called dispatch and made this statement relative to his admitted use of 
force on Newman. 
 Additionally, the evidence is cumulative, as Abbott testified at trial regarding the details 
of Newman and Ballard’s arrests and his calls to dispatch.  The jury saw the body worn camera 
footage of Detective David Lewis, which demonstrated that multiple law enforcement officers 
arrived to assist Abbott and that EMS workers came to evaluate Newman and Ballard.  No 
evidence was presented that contradicted Abbott’s testimony regarding the fact or content of 
his calls to dispatch.  Accordingly, the recordings of Abbott’s calls to dispatch on or about 
January 20, 2021, were excluded as hearsay. 
  
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 Dated:  March 1, 2024. 
 
 
 
  
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