EASTERLY, Associate Judge:
This case began when Christopher Ballard called 911. In an ensuing seventeen-minute "reasonable conversation" between Mr. Ballard and a 911 operator that the trial court found was "fairly level and coherent and balanced," but "perhaps mask[ed] ... [Mr. Ballard's] emotional agitation," Mr. Ballard accused Antoine Mayhand of threatening to stab him. Mr. Mayhand was charged with threats
Mr. Ballard did not testify at trial, and the government successfully argued that the entirety of his 911 call was admissible as an excited utterance and present sense impression. This recording was the only evidence the jury heard of Mr. Mayhand's alleged criminal conduct. The jury acquitted Mr. Mayhand of threats but convicted him of obstruction of justice. Mr. Mayhand makes multiple arguments on appeal, but we need only address two: his challenge to the sufficiency of the evidence and his argument that the accusatory portions of Mr. Ballard's 911 call were improperly admitted because they did not fall within the excited utterance exception to the rule against hearsay.
We conclude that the evidence presented at trial was sufficient to convict Mr. Mayhand of obstruction of justice, but we determine that reversal is required because the evidence of a threat used to obtain that conviction was inadmissible hearsay that should not have been presented to the jury. Specifically, the trial court improperly admitted as excited utterances the parts of Mr. Ballard's 911 call that the government needed to prove obstruction & mdash; the statements in which Mr. Ballard calmly reported to the operator that Mr. Mayhand had, at some unspecified prior time, threatened to stab him. Mr. Ballard's out-of-court accusations fail all three elements of our test for the admission of excited utterances and fall well outside the bounds of this limited exception to the rule against hearsay.
Again, we issue words of caution regarding the limited scope of this exception, which "is designed to protect litigants from judgments based on unreliable second-hand evidence which is not subject to
The foundation of the government's case was the 911 call Mr. Ballard placed on the morning of May 28, 2013. A recording of the call was made available to this court as part of the record. The government also provided this court with a transcript,
The 911 call lasted seventeen minutes and included four specific assertions by Mr. Ballard that, at some unspecified earlier point in time, Mr. Mayhand had threatened to stab him. The statements are: (1) at minute 1:22, "[h]e said he was going to pull a knife on me, and stab me"; (2) at minute 2:11, "[h]e said, `I should pull a knife on you and stab your bitch ass'"; (3) at minute 2:27, in response to a question from the operator asking where the knife was: "I have no idea, he said I should pull this knife on you ..."; and, (4) at minute 6:15, "[n]o, I have not seen any weapons, but he said, `I should pull a knife on you and stab your bitch ass.'"
The remainder of the call is a narration of Mr. Ballard's walk from Ivory Walters Lane to the Denny's on Benning Road, a distance of about ten blocks, apparently with Mr. Mayhand in close proximity. Interspersed between updates on his location, Mr. Ballard gives the 911 operator descriptions of himself and of Mr. Mayhand, as well as explanations of his involvement in the case against Mr. Mayhand's brother. The recording also includes long periods of silence, some lasting over a minute. A few times, Mr. Ballard can be heard shouting angrily at someone, presumably Mr. Mayhand. At one point, Mr. Ballard tells the operator that Mr. Mayhand is "charging" him, and then shouts, "[t]hat's why he's gonna do fifteen years! The police is on the line, what you gonna do? Bring it on!" But nothing appears to come of the "charging"; Mr. Ballard immediately provides another update on his location and informs the operator that Mr. Mayhand is "just standing there looking at me now." The call ultimately terminates after the police arrive and Mr. Ballard is heard making contact with them.
The police arrested Mr. Mayhand, and he was charged with threats and obstruction of justice. Prior to trial, the government moved for a ruling on the admissibility of the recording of Mr. Ballard's 911 call. Over the defense's objection, the court ruled that the government could play the entire call for the jury. The court reasoned that "the bulk of it is a present sense impression" and that "[t]he only part
The court explained:
Aside from the recording of Mr. Ballard's 911 call, the only other evidence presented by the government at trial was the testimony of Officer Stephen Chih, one of the police officers who responded to the 911 call. Officer Chih testified that when he first arrived on the scene, Mr. Mayhand and Mr. Ballard were standing "15, 20 feet" apart. Because Mr. Mayhand
Based on this evidence, a jury convicted Mr. Mayhand of obstruction of justice and acquitted him of making threats. This appeal followed.
We first examine the sufficiency of the evidence and determine that, when considering the improperly admitted 911 call, as we must,
When a defendant challenges the sufficiency of the evidence, we "assess the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Harrison v. United States, 60 A.3d 1155, 1161 (D.C.2012) (quoting Campos-Alvarez v. United States, 16 A.3d 954, 964 (D.C.2011)). We reverse a conviction for insufficiency "only where there is no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt." Id.
Mr. Mayhand argues that the government failed to prove a "nexus" between the threats he allegedly made towards Mr. Ballard and any intent to prevent Mr. Ballard "from testifying at the trial of Mr. Mayhand's brother." The crime of obstruction does not require the government to present such proof, however. As defined by D.C.Code § 22-722(a)(4), the crime of obstruction is committed when a defendant "[i]njures or threatens to injure any person ... on account of the person... giving to a criminal investigator in the course of any criminal investigation information related to a violation of any criminal statute in" the D.C.Code. The recording of the 911 call, in conjunction with testimony from Officer Chih that Mr. Mayhand had called Mr. Ballard a "snitch," a derogatory term for a witness for the government, provided a sufficient basis for a reasonable fact-finder to infer that Mr. Mayhand had threatened to injure Mr. Ballard and had done so "on account of" the information Mr. Ballard gave to law enforcement during the investigation of Mr. Mayhand's brother.
The more troubling question is whether the government should have been permitted to make the 911 recording the evidentiary core of its case. We turn to that question now.
We focus on the admissibility of the accusatory portions of the 911 call — the portions in which Mr. Ballard told the 911 operator that Mr. Mayhand had threatened to pull a knife on him. If these statements were not admissible as excited utterances, then it would not matter if the remainder of the seventeen-minute 911 call were properly admitted as an excited utterance or a non-reflective, present sense impression.
The test for admitting an out-of-court statement offered for the truth of the matter asserted under the "excited utterance" exception to the rule against hearsay is well established in this jurisdiction and has three parts. The proponent of the statement must establish:
Odemns, 901 A.2d at 776. "In all cases the ultimate question is whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event." In re L.L., 974 A.2d 859, 865 (D.C.2009) (quoting Price v. United States, 545 A.2d 1219, 1227 (D.C.1988)).
Whether a statement constitutes an excited utterance "depends upon the facts peculiar to each case," Lewis v. United States, 938 A.2d 771, 775 (D.C. 2007), and each element of the three-part test "must be met" before such a statement may be admitted into evidence. See Melendez v. United States, 26 A.3d 234, 245 (D.C.2011). The trial court "has the legal responsibility to examine the testimony and determine whether the proper foundation has been laid" before deciding whether the exception applies. Castillo v. United States, 75 A.3d 157, 162 (D.C.2013) (internal quotation marks omitted). We commit this decision to the trial court's "exercise of sound judicial discretion." Odemns, 901 A.2d at 776 (quoting Nicholson v. United States, 368 A.2d 561, 564 (D.C.1977)). Accordingly, we review the trial court's fact-finding for clear error, and we review the court's determination that these facts permit admission of a statement under the excited utterance exception for abuse of discretion. Id. See also Castillo, 75 A.3d at 162. Obviously, whether the trial court adheres to the test for the admission of hearsay under this exception is a legal question and the trial court abuses its discretion when it "rests its conclusions on incorrect legal standards." Castillo, 75 A.3d at 162 (quoting In re J.D.C., 594 A.2d 70, 75 (D.C.1991)). See also Simmons v. United States, 945 A.2d 1183, 1187 (D.C.2008) (stating that "[a] discretionary ruling founded on a mistake of law" is "by definition" incorrect).
The first question for the trial court was whether Mr. Ballard had experienced an exciting event that "generated a state of nervous excitement or physical shock in the declarant." Odemns, 901 A.2d at 776. The court determined that being threatened and then followed by the individual who had issued the threat would be "an exciting event that would put [a reasonable person] into a state of emotional agitation";
The trial court determined that Mr. Ballard was in a state of "emotional agitation," even as it acknowledged that Mr. Ballard's "conversation with the 911 operator [wa]s fairly level and coherent and balanced"; that Mr. Ballard was "certainly not a hysteric, screaming into the phone"; and that Mr. Ballard, "[o]ver a period of time, engage[d] in a reasonable conversation with the operator." Indeed, the trial court found that Mr. Ballard was able to control his emotions: after "screaming at [Mr.] Mayhand," he had the "ability" to resume "his conversational pattern with the operator" and "go[ ] back to his reasonable tone of voice." Having ourselves listened to the recording of the 911 call, we concur with the court's factual findings regarding Mr. Ballard's outward emotional state. Those findings, however, do not support a determination that Mr. Ballard was experiencing the necessary "nervous excitement or physical shock," Odemns, 901 A.2d at 776, to support admission of his statements under the excited utterance exception to the rule against hearsay.
The essential rationale of this hearsay exception is that statements made while a person is overcome by excitement or in shock are fundamentally trustworthy. The theory at least is that the wash of excitement blocks the reflection and calculation that could produce false statements:
Odemns, 901 A.2d at 778 n. 6 (emphases in original).
The trial court's findings regarding Mr. Ballard's "reasonable" demeanor while speaking to the 911 operator establish that Mr. Ballard did not experience this sort of suspension of cognitive function in his seventeen-minute telephone call with the 911 operator. See Alston, 462 A.2d at 1127 ("[W]hen the declaration consists of a calm narrative of a past event, it loses the character of a spontaneous utterance."). Cf. Odemns, 901 A.2d at 777 (stating that the excited utterance exception is meant "to apply to situations in which the declarant was so excited by the precipitating event that he or she was still under the spell of its effect" at the time of speaking) (internal quotation marks omitted).
We acknowledge the court's finding that it detected "strain" in Mr. Ballard's voice, but mere vocal strain or indication of some anxiety is insufficient in this context. Again, because our aim is to ensure that an individual's powers of reflection have been suspended, we require a much higher level of emotional upset to support the admissibility of a hearsay statement as an excited utterance. Alston, 462 A.2d at 1127 (stating that only when "there is evidence that the declarant was highly distraught and in shock at the time the statement was uttered, [is] an adequate showing as to the first element ... made"). Accord. Castillo, 75 A.3d at 161-63 (first prong satisfied where declarant was "really upset" and "pacing around and screaming"); Melendez, 26 A.3d at 245 (declarant was "very scared, excited, nervous, and cold, tired, very shocked, greenish, and very upset") (internal quotation marks omitted); Teasley v. United States, 899 A.2d 124, 128-29 (D.C.2006) (declarant "spoke in an excited tone, mumbled to himself, and didn't have the wherewithal to provide his license plate number") (internal quotation marks omitted); Bryant v. United States, 859 A.2d 1093, 1100 (D.C.2004) (declarant was "crying, shaking and very distraught").
In fact, the court appeared to recognize that the evidence of Mr. Ballard's outward demeanor, at the time he made his accusatory statements, was insufficient. It thus determined that Mr. Ballard was "perhaps masking ... his emotional agitation" such that it was "not immediately apparent from the conversational pattern of the participants that [Mr.] Ballard was suffering from an emotional agitation." But to the extent the court relied on its assessment that Mr. Ballard was "masking" his excitement, the court misconstrued this first element of the excited utterance test.
An individual who is "under the immediate and uncontrolled domination of the senses," see Alston, 462 A.2d at 1126, should not be able to "mask" or otherwise control his emotional state. Indeed, the exercise of such control is precisely the type of deliberative cognitive function that the first element of the test for the admission of excited utterances is supposed to screen out. Thus, by determining that a declarant of an excited utterance may "mask" the very symptoms that we require to justify the admission of a statement under this hearsay exception, the court effectively negated the first element of the excited utterance test.
Because there was no indication that Mr. Ballard was actually "distraught, in shock, or in a state of nervous excitement at the time" he made his accusatory statements to the 911 operator, the trial court "had no basis, in the existing evidence, to find that the first element [of the excited utterance exception] had been satisfied." Walker v. United States, 630 A.2d 658, 666 (D.C.1993).
Turning to the second element of the excited utterance exception — that the statement be made "within a reasonably short period of time after the occurrence, so as to ensure that the declarant had not had time to reflect on the statement or premeditate or construct it," Odemns, 901 A.2d at 776 — we determine that the court's findings were both insufficient and unsupported by the record.
The contemporaneity and spontaneity element of the excited utterance test, though "not controlling, ... is of great significance." Castillo, 75 A.3d at 164 (emphasis in original) (quoting Odemns, 901 A.2d at 778). Like the "nervous excitement or physical shock" element, it
The trial court needed to make a finding about the contemporaneity and spontaneity of Mr. Ballard's statement vis-à-vis the source of his stimulus. And to do that, it needed to make a specific finding about the timing of the alleged threat itself. But it did not do this. Rather, it appeared to assume that the alleged threat closely preceded the 911 call and then found that the alleged following, in conjunction with the recent threat, created an "ongoing" exciting event.
The trial court's analysis is problematic for a number of reasons. To begin with, there is no evidence in the record about when the alleged threats had actually occurred, or how much time had passed before Mr. Ballard called 911. Although Mr. Ballard repeated Mr. Mayhand's threat to the 911 operator several times and gave the operator a variety of other information, he never indicated when or where Mr. Mayhand had allegedly threatened him.
Here, even if we assume that Mr. Ballard had an excitement-inducing encounter with Mr. Mayhand just before he called 911, his calm demeanor on the call, see supra at II.B.1, and his deliberate responses to questioning by the 911 operator indicate that the intensity of any agitation he may have felt from his alleged encounter with Mr. Mayhand was not lasting and did not prompt spontaneous statements. Mr. Ballard did not excitedly blurt out that he had been threatened as soon as he connected with the 911 operator. He first answered the operator's preliminary inquiries for his name and location. Almost a minute and a half passed before Mr. Ballard told the operator that Mr. Mayhand had "said he was going to pull a knife on me, and stab me."
A statement is not automatically disqualified from admission as an excited utterance simply because it is made in response to questioning; however, a court's analysis must take into account the circumstances in which the statement is made. See Reyes v. United States, 933 A.2d 785, 791 (D.C.2007) ("The key inquiry is whether the interview conducted was more deliberative in nature than spontaneous.") (internal quotation marks omitted). If the declarant is still "under the spell of the startling event," a response to a government agent's question may yet qualify as an excited utterance. Id. But if, as here, the questions produce deliberative and thoughtful answers, then the necessary element of spontaneity and non-reflection is missing. Id. See also Odemns, 901 A.2d at 779 (finding a lack of spontaneity where there was "no evidence that the declarant [when speaking to the police] shrieked out her account, that she had lost her self-control, or that she was unable to think or reflect. Rather, shaken and upset as she undoubtedly was, she gave evidently responsive and rational answers to the detective's questions").
We thus conclude that the court had insufficient basis for its finding that the statements alleging Mr. Mayhand's prior threats were made spontaneously and within a reasonably short time of a startling event.
The third and final element of the test for the admission of a hearsay statement under the excited utterance exception is an assessment of whether the "circumstances... in their totality suggest spontaneity and sincerity of the remark." Odemns, 901 A.2d at 776. The trial court did not address this element explicitly or implicitly, but see Melendez, 26 A.3d at 245 (all "three elements must be met" before an excited utterance may be admitted); but had the court done so, this element could not have weighed in favor of admission of Mr. Ballard's statement.
Apart from the fact that Mr. Ballard did not appear to be overcome by excitement or in shock and that his proffered statement was neither contemporaneous with a sufficiently exciting event nor spontaneous, any analysis of the totality of the circumstances must take into account Mr. Ballard's apparent anger at Mr. Mayhand and his awareness that he was on the telephone, with the police, reporting a crime. This was not a situation where the police, summoned by a third party, arrived at the scene and encountered an individual wholly undone by a traumatic incident.
As the government proved none of the elements necessary to establish that Mr. Ballard's hearsay accusations were excited utterances, the trial court could not reasonably have deemed these statements admissible under this exception to the rule against hearsay. But that determination is only the first step of the abuse of discretion inquiry. "[W]hen reviewing a trial court's exercise of discretion," this court "must determine, first, whether the exercise of discretion was in error and, if so, whether the impact of that error requires reversal. It is when both these inquiries are answered in the affirmative that we hold that the trial court `abused' its discretion." Johnson v. United States, 398 A.2d 354, 367 (D.C.1979). To assess the impact of the court's incorrect ruling, we apply the test for nonconstitutional harmless error under the Kotteakos
The government has not made any argument that the admission of Mr. Ballard's hearsay was harmless. In any event, where this hearsay was the entirety of the government's evidence that Mr. Mayhand had threatened Mr. Ballard, the only conclusion we can draw is that the jury's judgment was substantially swayed by the admission of this evidence.
Accordingly, we conclude that the trial court abused its discretion when it admitted Mr. Ballard's accusatory statements in his conversation with the 911 operator. Mr. Mayhand's conviction must therefore be reversed.
So ordered.
ANTOINE MAYHAND, Appellant, v. UNITED STATES OF AMERICA, Appellee.
