This- сase 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 May-hand of threatening to stab him. Mr. Mayhand was charged with threats 1 and, because Mr. Ballard was due to testify against Mr. Mayhand’s brother'in another case, obstruction of justice. 2
.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. May-hand makes multiplе 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. 3
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— the statements in which Mr. Ballard calmly rеported to the operator that Mr. May-hand 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
I. Facts
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, 4 which we have attached to this opinion as Appendix A.
The 911 call lasted seventeen minutes and included four specific assertiоns 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, T should pull a knife ori 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 6:16, “[n]o, I have not seen any weapons, but he said, T 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 cаll. 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:
People do get — well, certainly, as I said earlier, if someone threatens to stab'you with a knife arid then follows you for- a period of blocks down the street; that is an event that a reasonable person would — that a reasonable person would find to be an exciting event that would put them into a state of emotional agitation. So that element I believe is satisfied.
The question is whether in this particular case Mr. Ballard was put into — was, in fact, put into such a state of emotional agitation. And I do find that he was. It is true that his conversation with the 911 operator is fairly level and coherent and balanced. He’s certainly not a hysteric, screaming into the phone. Over a period of time, engages in a reasonable conversation with the operator. But people exhibit their emotional agitation in different ways. Not everyone gets hysterical. It does seem to me that there is strain in his voice throughout the call. Certainly he was concerned enough about the threat that he did call the police and remained on the police — or the entire 17 minutes it took for them to •dispatch someone to come to get him. And I think most importantly, there are timеs during those 17 minutes when apparently there, is an exchange between [Mr.] Ballard and [Mr.] Mayhand where he is screaming at [Mr.] Mayhand. Clearly on those parts of the call, he is emotionally agitated when, he’s screaming at [Mr.] Mayhand. .But immediately after engaging in this, he goes into the same conversational pattern with the operator, goes back to his reasonable tone of voice. And so it seems to me that he is making an effort to be understood by the operator, to talk reasonably with the operator and that is perhaps masking the, submission of his emotional agitation. He has the ability to do that. But I do find that the agitation existed and was certainly corroborated then by the observations of the officers when he comes on the scene, that being in his— his head is or his neck is pulsating and that he’s sweating profusely, and that he articulates concern for his life based on his interaction with Mr. Mayhand. So I do find that throughout the call, while it’s not immediately apparent from the conversational pattern of the participants that [Mr.] Ballard was suffering from an emotional agitation.
And I addressed temporal aspect earlier 5 which is that in my mind it’s not just the threat, but it’s the threat and the following down the street that causes the emotional agitation and that’s an ongoing stimulus that was sufficient to make, in my mind, the entire 911 call an excited utterance.
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.
II. Analysis
A. The Sufficiency of the Evidence to Support Mr. Mayhand’s Conviction for Obstruction of Justice
We first examine the sufficiency of the evidence and determine that, when considering the improperly admitted 911 call, as we must, 6 there was sufficient evidence to support Mr. Mayhand’s conviction for obstruction of justice.
When a defendant сhallenges 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,
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 tо 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. May-hand 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 informátion 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 eviden-tiary core of its case! We turn to that question now.
B. The Admissibility of the Accusatory ' Portions of the 911 Call as Excited Utterances
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.
7
Excised of Mr. Ballard’s re
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:
(1) the presence of a serious occurrence which causes a state of nervous excitеment or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.
Odemns,
Whether a statement constitutes an excited utterance “depends upon the facts peculiar to each case,”
Lewis v. United States,
The first question for the triаl court was whether Mr. Ballard had experienced an exciting event that “generated a state of nervous excitement or physical shock in the declarant.”
Odemns,
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 [wajs 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, engaged] 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,
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:
[A] person making an exclamation or a statement while under the influence of the • excitement or shock caused by witnessing or participating in an extraordinary event, such as a murder or a serious accident, is unlikely to fabricate an untruth, but, on the contrary, has a tendency to disclose what is actually on his mind. The mental stress and nervous strain preclude deliberation and bar reflection. Declarations made while the spell endures are uncontrolled. They are practically reflex actions and may be said to be verbal photographs or images of the contents of the brain. Such utterances are likely to be made without any calculation as to their potential effect and without regard to their possible consequences. They are apt to be the truth as the person knows it. Consequently, it is safe to accept testimony as to expressions of this type, even in the absence of an opportunity to cross-examine the person who gave vent to them. These considerations form theunderlying reason for this exception to the hearsay mle.
Odemns,
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,
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 individúal’s powers of reflection have been suspended, we require a much higlri er level of emotional upset to support the admissibility of a hearsay statement as an excited utterance.
Alston,
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 thаt [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,
Becausе 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,
2. Contemporaneity and spontaneity
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,
The contemporaneity and spontaneity element of the excited utterance test, though “not controlling,"
... is of great significance.” Castillo,
The trial court needed to make a finding about the contemporaneity and spontaneity of Mr. Ballard’s statement vis-a-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 evidencе 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. 14 There having been no evidence presented as to when the initial stimulus occurred, the court’s determination that Mr. May-hand’s continued presence during the 911 call was a source of “ongoing stimulus” lacks foundation. Even assuming from the fact of the call that the alleged threat had occurred immediately prior, Mr. May-hand’s demeanor disproved that the alleged threat in conjunction with, Mr. May-hand’s continued proximity served as an “ongoing stimulus,” at least in the sense required fоr an excited utterance, and should not have negated any temporal concerns. To be sure, more than two minutes into the call, Mr. Ballard noted that Mr. Mayhand was following him. But he provided this, information matter-of-factly, and when asked whether he was able to get himself to safety, he responded that he was “on a public street,” suggesting that he felt no need to seek shelter. And in fact, he did not. He continued his ten-block walk- to the Denny’s on Benning Road, and he continued his mostly, calm conversation with the 911 operator.
Here, even if we assume that Mr. Ballard had ah 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 ahy 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 hi's 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.” 16
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,
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 them totality suggest spontaneity and sincerity оf the remark.”
Odemns,
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 whоlly undone by a traumatic incident. 17 Here, Mr. Ballard had the wherewithal to call the police, not merely to ask for help, but to document Mr. Mayhand’s criminal behavior and to identify him to the police. He responded “reasonably” to all of the operator’s questions for information about Mr. Mayhand and made sure to repeat Mr. Mayhand’s threat multiple times. He remained on the line with the 911 operator for seventeen minutes, and, in the midst of this conversation, he directed outbursts at Mr. Mayhand, at one point yelling, “[t)he police is on the line, what you gonna do?” This self-awareness is the antithesis of the mental state required to support a determination that the declarant’s out-of-court statements were excited utterances. ' Accordingly, we determine that the totality of the circumstances, like the first two elements of the test for an excited utterance, do not support admission of Mr. Ballard’s accusatory statements as spontaneous and non-reflective expressions of the truth.
4. Harm
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,
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.
APPENDIX A
BRIEF FOR APPELLEE
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-1295
ANTOINE MAYHAND, Appellant, v.
UNITED STATES OF AMERICA, Ap-pellee.
[[Image here]]
Operator: Officer Unified Communications, D.C. 911 (0:01).
Ballard: I need the police (0:03).
Operator: This is operator number 7930 ,(0:04).
Ballard: Ivory Street (0:07).
Operator: Repeat the location for the recorded line please (0:10).
Ballard: Ivory Walters and G Street, southeast (0:12).
Operator: Ivory Walters Lane? (0:34.)
Ballard: Yeah (0:35).
Ballard: Christopher McKay Ballard. I’m on Benning Road and G Street now. (0:54.)
Operator: Okay you’re at this location now, correct? (1:12.)
Ballard: Mhhmm (1:14).
Operator: You said someone was harassing you? (1:15.)
Ballard: Yes (1:17).
Operator: Any weapons involved, or mentioned? (1:19.)
Ballard: He said he was going to pull a knife on me, and stab me (1:22).
Operator: Do you know this person? (1:26.)
Ballard: His name is Antoine Jack- Antoine Smith. He has on a black jacket and a Muslim kufi. (1:28.)
Operator: Okay... A- a what now? (1:43.)
Ballard: A black jacket and a muslim kufi (1:45).
Operator: Black jacket and a - okay (1:48).
Ballard: With a grey... (1:49).
Operator: Oh, okay. How old is he? (1:50.)
Ballard: I don’t have no idea how old he is (1:54).
Operator: Okay, what do you have on?. Are you white, black, Hispanic? (1:58.)
Ballard: I’m a black male, with a black ja~ with blue jeans (2:00),
Operator: Where is the - where is the knife he threatened to ham you with? (2:07.)
Ballard: He said, “I should pull a knife on you and stab your bitch ass” (2:11).
Operator: Okay, your information has been sent to the radio. Now where’s the knife now? (2:22.)
Operator: Oh, he should, okay, so your - the weapon hasn’t not been seen yet - (2:30).
Ballard: That’s correct (2:32).
Operator: Yes sir. Okay, are you in any immediate danger? (2:34.)
Ballard: He’s following me down the street (2:39).
Operator: All right. I’m going to stay on the line with you. Are you able to get yourself to safety? (2:42.)
Ballard: I’m on a public street, I’m on Benning Road right nоw about - uh - what’s the... (2:47.)
Operator: Okay. Help is being dispatched to that location, help is on the way, just to let you know. Stay on the line. Is anyone else in immediate danger, sir? (2:59.)
Ballard: No, ma’am (3:14).
Operator: Okay. Stay on the line, (3:16.)
Ballard: He has on a black jacket with grey shorts and, urn - (3:26).
Operator: How old does he appear to be? (3:35.)
Ballard: Urn, forti— in his . .. late thirties, he has a beard (3:40).
Operator: Okay, what’s his name again - what’s his name again? (4:00.)
Ballard: [indecipherable] Antoine Smith (4:09),
Operator: All right, once again . . . Help has been dispatched to that location. Are you still at that location, sir? (4:14.)
Ballard: Right now, I’m at Benning Road and E Street. He’s still following me. (4:22.)
Operator: Okay, and where - he’s on foot, correct? Which direction are you headed in? (4:56.)
Ballard: I’m walking towards the police station (5:00).
Ballard: The Sixth District (5:04).
Operator: The number Five? (5:06.)-
Ballard: The Sixth District (5:10).
Operator: Oh, the Sixth District: So wait, what street are you on now? (5:11.)
Ballard: Benning Road (5:16).
Operator: All right, help is being dispatched. I’m going to stay on the line with you, okay? (5:30.)'
Ballard: Okay (5:36).
Operator: What are you wearing? (5:38.)
Ballard: A black zip-up jacket, blue jeans, and black - black shoes (5:43)/
Operator: How old are you sir? (6:01.)
Ballard: Thirty-seven. He’s still following me, on the othеr side of the street. (6:05.)
Operator: Okay, I did let the dispatcher know, but I’m going to stay on the line with you. Do you see any weapons? (6:07.)
Ballard: No, I have not seen any weapons, but he said, “I should pull a knife on you and stab your bitch ass.” I had his brother locked up for shooting at me. (6:15.)
Operator: Okay, let me know when you see officers at that location, or when MPD arrives at that location (6:54).
Ballard: All right (7:08).
Operator: And you’re on Benning Road now? (7:25.)
Ballard: Yes, I’m on Benning Road and C Street now, and he’s still following me (7:27).
Operator: Let me know when you see the officer, okay? (7:42.)
Ballard: Mhhmm (7:47).
Operator: You do not see the officer? (8:15.)
Ballard: I’m on Benning Road and C street (8:18).
Ballard: Hello? (9:40.)
Operator: Yes sir, I’m still on the line with you (9:41).
Unknown: [ibackground voices can be heard, indecipherable] (9:45).
Operator: Who is that, sir? (9:47.)
Ballard: Someone walking past, in the other direction (9:50).
Operator: All right (9:53).
Operator: And you’re still on Benning Road? (10:17.)
Ballard: Yes ma’am, Benning Road and B Street. And he’s walking along the other side of this street. (10:19.)
Operator: All right, I did let the dispatcher know that the individual is still following you (11:15).
Ballard: [shouting, not speaking into receiver] That’s why he’s gonna do 15 years! That’s why! And you threaten me again, and I should have your ass locked up for assaulting me! Say another word. (11:59.)
Oрerator: Sir, don’t say anything to the individual, wait for the officer, okay? (12:16.)
Ballard: He’s coming over here, ma’am, [shouting, speaking into receiver] He’s charging me, ma’am! He’s charging me! (12:39.)
Operator: Are they sti - (12:49).
Ballard: [shouting, not speaking into receiver] That’s why he’s gonna do 15 years! The police is on the line, what you gonna do? Bring it on! (12:52.)
Operator: Okay sir, where are you now, what 100 block of Benning are you on? (13:13.)
Ballard: Benning Road and East Capitol (13:17).
Ballard: You go — you go — yeah (13:23.)
Operator: You're on Benning.Road and East Capital? (13:24.)
Ballard: [shouting] Puck [indecipherable]] That’s why your brother gonna do 15 years! Stay off the streets so you can support him! (13:24.)
Operator: [siren is heard in background] Okay is that the officer? Do you hear them? Or... is it something else... You’re going to have to flag 'em down if you see them, sir. (14:09.)
Ballard: No, that’s the ambulance (14:17).
Operator: Oh, okay (14:19).
Ballard: Well, I’m almost, I’m almost at, I’m almost at the district (14:30).
Operator: I’m sorry? (14:34.)
Ballard: I’m almost at Sixth District (14:35).
Operator: You’re at Fifth District? (14:37.)
Ballard: I’m almost at Sixth District (14:40),
Operator: Oh, Sixth District, on Benning Road, correct. Well, I’m going to stay on the line with you until the officer arrives at your location, or you reach the- the Sixth District. (14:42).
Operator: Is the gentleman still following you sir? (15:39.)
Ballard; Naw, he’s just standing there looking at me now (15:42).
Operator: Okay, so where exactly are you now? (15:47.)
Ballard: I’m at the Exxon (15:52).
Operator: Okay, on Benning Road, by the Denny’s? Okay. Are you still walking? (16:53.)
Ballard: No ma’am (16:04),
Operator: Yes or no? (16:06.)
Operator: Are you on the property of Exxon? (16:20.),
Ballard: I’m on the . . . I’m standing across the street from the Denny’s. I’m standing at the Denny’s. (16:26.)
Operator; So you’re near the Denny’s. You’re closer to Denny’s, correct? (16:29).
Ballard: Yes ma’am. Here comes the officers, {shouting, not speaking into receiver} Here you go, here you go, hey! [speaking into receiver] There go the officers. (16:38.)
Operator: Okay. Does he see you? (16:44.)
Ballard: Yeah (16:47).
Operator: He does? Yes or no. (16:48.)
Ballard: Yes (16:50).
Operator: Okay (16:52).
Ballard: [shouting, not speaking into receiver] This man right here just now threatened me! (16:55.)
Operator: Terminate call, MPD on scene. .. Okay thank you (16:56).
Notes
. D.C.Code § 22-1810 (2012 Repl.).
. D.C.Code § 22-722(a)(4) (2012 Repl.).
. Mr. Mayhand also argues that the remainder of the 911 call should not have been admitted as a present sense impression, that the entirety of the call was a testimonial statement that triggered his Sixth Amendment right to confrontation, and that an anti-deadlock instruction given to the jury was coercive.
. The transcript was prepared by the government, but appellant does not- object to its contents.
. The court had earlier preliminarily observed that
the temporal element is satisfied because it’s not just the threat that would excite a state of nervous excitement in the hearer. It is also being threatened and then being followed do\yn the street. And so in that sense, I think, there’s an ongoing event that would reasonably engender a nervous excitement on the part of the victim. So the temporal element, I believe, is satisfied.
.
See Thomas v. United States,
.
See Hallums
v.
United States,
. The government cites
(Martin A.) Brown v. United States,
. The court did not consider whether the uncorroborated out-of-court statement proffered as an excited utterance could serve as the sole . proof that an exciting event had occurred.
But see United States v. Woodfolk,
. As we acknowledged in
Odemns,
. We have previously relied on the Fedéral Rules' explanation of the excited utterance exception as a basis for our use of the same.
See Brisbon v. United States,
.The court also looked to the fact that Mr. Ballard was “concerned enough about the threat” to remain on the phone for seventeen minutes as evidence that Mr. Ballard was experiencing the requisite "emotional agita
. Both the hearsay exception for present sense impressions and excited utterances require a showing of spontaneity, see Fed. R.Evid. 803(1), (2) advisory committee note (explaining that " [spontaneity is the key factor” for both present sense impressions and' excited utterances), but we allow a bit more temporal flexibility with thе latter exception, relying on the emotional element to "still[ ] the capacity of reflection.” Id.
. At the end of the 911 call, Mr. Ballard is heard telling the officers who responded that "[t]his man right here just now threatened me.” But, of course; given,that Mr; Ballard had just spent seventeen minutes on the phone with this 911 operator, the assertion that Mr. Mayhand had "just now” threatened Mr. Ballard cannot be literally interpreted.
. In support of its argument that the alleged threat was close enough in time to Mr. Ballard’s 911 call, the government cites to other cases where we stated that statements made within a half hour of a disturbing event were admissible. But in those cases the declarants not only experienced arguably more disturbing events than the receipt of a verbal threat, but also were, unlike Mr. Ballard, actually traumatized.
See, e.g., Teasley,
. As he repeated this аccusation at later points in the conversation (two minutes into the call and then again six minutes into the call), the time between the alleged threat and his report of the threat only grew.
.
See, e.g., Smith,
.
Kotteakos v. United States,