Kywone D. Pelzer v. United States, 166 A.3d 956

Defendant Kywone D. Pelzer was convicted by a jury of robbery after a November evening Metrobus encounter in which the victim, Preston Mitchum, said Pelzer followed him off the bus, aggressively demanded to use his new iPhone 5C, grabbed it from his hand and ran; Mitchum shouted, “sir, you have my phone.”
Mitchum reported the theft to officers on the street; police stopped Pelzer that night, recovered Mitchum’s iPhone from him, and Mitchum made an in-court identification during a show-up.
Pelzer testified he had been permitted to borrow the phone to make a call, then walked ahead of Mitchum and later left; he denied following or grabbing the phone.
The government played a recording of Mitchum’s 911 call made about 15 minutes after the incident; the trial court admitted it as an excited utterance over defense objection.
The government also played snippets of Pelzer’s videotaped statement to impeach his trial testimony; the court gave jury instructions on change of appearance and flight.
On appeal Pelzer argued (1) insufficient evidence of taking by force or against Mitchum’s will, (2) erroneous admission of the 911 call as an excited utterance, (3) improper use of the videotaped statement, and (4) erroneous jury instructions. The D.C. Court of Appeals affirmed.

Issue	Pelzer's Argument	Government's Argument	Held
Sufficiency of evidence of robbery (taking against will)	Evidence insufficient; phone transfer was voluntary	Testimony, pursuit, victim’s shout, recovery of phone supported robbery	Affirmed — evidence sufficient for a reasonable juror to find nonconsensual taking
Admissibility of 911 call (excited utterance)	Admission was an abuse: call was made after conversation with police and after returning home; not sufficiently contemporaneous or spontaneous	Call was within a reasonably short time and showed emotional upset; admissible	Trial court abused discretion in admitting call as excited utterance, but error was harmless given other evidence
Playing videotaped police statement / refreshing or impeachment	Court improperly allowed tape to be played before jury to refresh recollection	Tape was used to impeach after foundation; prosecution did not refresh memory but sought to impeach; defense did not object later	No abuse of discretion — impeachment use permissible and not shown improper
Jury instructions (change of appearance; flight)	Flight and change instructions were improper and prejudicial	Change supported by clothing inconsistency; flight instruction was limited and harmless	Change of appearance instruction proper; any error in flight instruction harmless

Mayhand v. United States, 127 A.3d 1198 (D.C. 2015) (sets three-part test for excited utterance and outlines standard of review)
Gabramadhin v. United States, 137 A.3d 178 (D.C. 2016) (discusses excited utterance admissibility and harmless-error analysis where declarant testifies)
Gray v. United States, 155 A.3d 377 (D.C. 2017) (defines robbery elements for D.C.)
Kotteakos v. United States, 328 U.S. 750 (U.S. 1946) (harmless-error standard: whether error substantially swayed the verdict)
Williams v. United States, 113 A.3d 554 (D.C. 2015) (standard for reviewing sufficiency of the evidence)
Odemns v. United States, 901 A.2d 770 (D.C. 2006) (timing requirement for excited utterance)
Daye v. United States, 733 A.2d 321 (D.C. 1999) (discussion of prior consistent/inconsistent statements and impeachment)
Lewis v. United States, 938 A.2d 771 (D.C. 2007) (excited utterance admissibility where declarant was very upset)
Scott v. United States, 619 A.2d 917 (D.C. 1993) (change of clothing can support inference of consciousness of guilt)
Headspeth v. United States, 86 A.3d 559 (D.C. 2014) (cautionary guidance on giving flight instructions)
Wheeler v. United States, 930 A.2d 232 (D.C. 2007) (standard for plain error review and jury instruction review)