Is a defendant's res gestae statement admissible if the evidence of the res gestae statement is elicted by a defense question at trial?

My scenario: Defendant arrested. While being strip searched at jail, a crack rock falls from her clothing. Defendant immediately says, not in response to questioning, to the jailer, "My girlfriend must have put that on me."

I'd like to be able to keep this res gestae statement out if I can. It allows the defendant to get in a defense he wouldn't otherwise be able to without taking the stand.

It would only be admissible if it was an admission of a party-opponent. He doesn't admit anything incriminating in the statement.

Often, the defense will think it can offer such a statement. However, as it does not fit as an admission and the defendant is not his own party-opponent, it can't come in under that rule.

So, it is just inadmissible (and self-serving) hearsay. Doesn't fit under any hearsay exceptions (it certainly isn't a statement against interest).

Personally, I think a jury upon hearing that statement would say, "Riiiiiight. Guilty."

Thanks, JB. That makes complete sense.

First, except for the art. 38.22 sec. 5 context, the term "res gestae" shouldn't be considered when addressing the admissibility of evidence. See Fischer v. State, 252 S.W.3d 375, 379 n.11(Tex. Crim. App. 2008)("most American courts had 'use[d] the term to some extent, but the Texas Court of Criminal Appeals seems to have gone the furthest in distilling chaos from simplicity'") (quoting G.T. Banks, Comment, Res Gestae in the Texas Court of Criminal Appeals: A Method to Their Madness?, 50 Tex. L.Rev. 119, 119 (1971)); 2 TEX PRAC § 803.3 ("promiscuous use of 'the nonsense phrase res gestae' created some confusion and obscurity concerning [the excited utterance exception]").

Second, the defense might try to offer the statement as a present sense impression. There are lots of problems with that.
1. "factual observations, narrations, opinions, and conclusions made by a citizen or bystander that might be intended by the declarant to be made with an eye toward future litigation or evidentiary use are inadmissible under the rule." Fischer, 252 S.W.3d at 384. The defendant had lots of time to plan for what he would say when the drugs were found.
2. The defendant has to show that he wasn't just speculating in his statement. Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995)
3. An injection of past events into the current observation is not allowed. United States v. Phelps, 572 F.Supp. 262, 265 (E.D.Ky.1983) (statement "That is my gym bag, but Taylor put it in the trunk" was not allowed under present sense impression: "the subject matter of the statement offered was not what the declarant was presently perceiving when the statement was made, but rather something which had occurred at a remote previous time, namely whenever the gym bag was placed in the trunk.");Anderson v. State, 15 S.W.3d 177, 183 (Tex.App.-- Texarkana 2000, no pet.). Discussed in 2 TEX PRAC sec. 803.2.

Excited Utterance?
Rule of Optional Completeness?
Potentially excultpatory evidence being "hidden" by the prosecution in an effort to force the defendant to waive his right not to testify?
Will the judge rule in your favor? If not, you may end looking like you were trying to hide evidence...

Better to play and argue its self-serving nature. Also, subpoena the girl-friend - doubt she'll confess to the possession but maybe the crack-head was telling the truth...

Case law is clear that when defendant claims no knowledge of the contraband, prior possession convictions are admissible under 404b. However, the direct evidence of possession is pretty strong and so prejudice of prior conviction likely outweighs probative value.

Finally, better file motion in limine cuz if I'm defense lawyer, I'm telling jury about the statement during opening. Then when they don't hear it, I'd tell them it was because you didn't want them to.

MJ

Just finished the trial today. Maximum sentence given by jury (10 yrs). We gave the proper notice of statements made by the defendant to law enforcement to defense a couple months ago, so they knew all about the "exculpatory" statements. I did file just such a motion in limine and it never was an issue at trial. The defense attorney knew that the statements didn't fit any hearsay exception. The girlfriend and I had a nice conversation when she showed up at my office, after being served her subpoena, in which she emphatically denied planting the crack. She went on to tell me that they had just left the crack house but she was smart enough to throw her crack on the ground as their car was being pulled over so she wouldn't get caught. Just gotta love an honest druggie.