*1 It is FURTHER ORDERED that the petition for rehearing otherwise denied. PEAK, Appellant. In re Francine No. CA10761-93.
District of Appeals. Columbia Court of
April 2003. WAGNER,
Before: Judge; Chief SCHWELB,
STEADMAN and Associate Angelo JONES, Appellant, D. Judges. STATES, Appellee.
UNITED ORDER No. 02-CM-271. PER CURIAM: Appeals. District of Court Columbia On consideration of appellant’s petition May Submitted 2003. rehearing or for amendment of opinion, July 24, Decided thereto, appellant’s state- agreement ment of appellee’s pro-
posed amendments of it is
ORDERED petition for rehear-
ing granted opin- extent 21, 2000,
ion on September filed is amend-
ed as follows: page
On footnote is10 amended to
read:
10 It appears part plea that as
bargain the remaining twelve counts of dropped. show cause order were Lynch
Should choose to withdraw her
guilty plea, eight least remaining
counts alleging violations of the show subject
cause order rein would be
statement, if newly-appointed prose pursue
cutor elects to some all charges.
those page
On the last sentence of footnote
15 is amended to read:
Should she be convicted on count for injunction
violation of the new pursue, decides to she would
of course retain the right challenge
such a on appeal. conviction *2 Jr., Briley, appointed A.
John court, appellant. for was on brief Howard, Jr., United States
Roscoe C. R. Michael Attorney, and John Fisher and Truscott, Attor- T. Assistant United States neys, appellee. were on brief STEADMAN, TERRY,
Before SCHWELB, Judges. Associate
PER CURIAM. his Angelo appeals Appellant, simple at a bench trial of assault conviction apparent dis- arising out of an domestic (1981). § He pute. D.C.Code arguments for reversal. We raises three affirm. Insufficiency the evidence: the oft- review this assertion under
We
standard,
repeated and well-established
most
light
viewing the evidence
recogniz
favorable to the
weighing
ing the factfinder’s role
evidence, determining
credibility of
witnesses,
justifiable infer
drawing
See, e.g., Lewis
from the evidence.
ences
(D.C.
trial,
Miller,
2001).
a police
At
responded to the scene within
officer who
call,
emergency
minute
radio
after
de
matched the
appellant
testified
dispatcher
police
scription given
it,
her.”
stated, “I
headbutted
victim, who
Officer Miller observed
ambulance;
vom
in an
she was
placed
bile,
injuries
lip,
to her lower
had
iting
crying, and
a shaky
voice. Officer
(admitting as excited utterances
state-
Miller testified that the victim said she had
ments
consisting
made
call
appellant
an altercation with
answers).
of questions
series
pushing began,
grabbed
when
his Moreover, the Confrontation
Clause
*3
wrists and he used his head to “headbutt”
require
Sixth Amendment does not
her, hitting his forehead to her mouth.
to prove that a declarant
is
say
We can hardly
this is a case unavailable before statements can be ad-
pro-
where “there has been no evidence
mitted as
Reyes-
excited utterances.
from
guilt may reasonably
duced
be Contreras, supra,
ed statement: The invoking utterance“[W]hether a statement her Fifth spontaneous constitutes a utterance de rights, Amendment chose not to take the pends upon particular facts of each Therefore, appellant sought stand. leave case, and its as admissibility such is within to admit an by unsworn written statement the sound discretion of the trial court.” victim,1 provide but was unable to States, v. Welch United the trial doing court for basis so in (D.C.1996). “In order to qualify contravention of rule against hearsay. utterance, excited a statement must have plain for We review error. See Patton v. 1) made, in response startling States, (D.C. United 633 A.2d event which causes the declarant to in a 1993) (citation omitted) (burden party on state of physical nervous excitement or seeking identify appropriate admission to 2) shock, reasonably within a period short rule). exception hearsay appeal, ap On of time after the event to ensure that the pellant suggests statement declarant did not have time to reflect and prior be admissible as a inconsistent state 3) which, under circumstances their to ment, hardly but that clear tality, indicate the statement was record. No foundation was laid for its spontaneous Malloy sincere.” see, admission, e.g., Parker v. United States, (D.C. United 797 A.2d States, 1280, 1288(D.C.2000), 757 A.2d 2002). criteria, Pursuant to these the trial in the of a proffer, absence detailed it is did court not abuse its discretion admit not shown that the statement was neces ting into evidence the victim’s statements sarily “prior” either to or “inconsistent” See, police. e.g., to the Reyes-Contreras v. with the excited utterance within the States, (D.C. United 719 A.2d meaning of the exception. We can find no 1998) (admitting as excited utterances plain here. error statements to po made assault victim lice after assault while victim was judgment on appeal accordingly crying visibly upset); (Raphael) Smith (D.C.1995) A.2d 1216 Affirmed. appeal proof, lay The statement not in the record on offer of foundation for affirma- appellant proffer made no error). direct its showing Appellant's tive counsel precise Apparently content. it contradicted proffer to the trial court that the victim respects police. her in some statements to the orally perception had told him it was Williams, See District Columbia v. Kora & that she lied and that the 1999) (D.C. (to properly physical contact was accidental and not in- preserve excluded review appellant tended as an assault. appeal, normally trial counsel must make an prose- case upon the for the SCHWELB, Judge, mortal wound Associate cution, lawful apparently concurring judgment. played hardball — hardball, hard- and even conventional the manner in which case was Given me made wince ball nevertheless —that nature of the presented at trial and the transcript perplexing I of this read the appeal,11 compelled to issues raised on am episode. af- agree that Jones’ conviction should be Nevertheless, in my opinion, the
firmed. my colleagues complex more than case is I. troubling flavor suggest, and it has a utterance,” begin “excited Cheryl unfairness. The statement *4 admissibility. surely marginal of was was admit- Baker that incriminated Jones A. Lavern Miller testified Officer as an “excited utterance” ted into evidence ar- already after Jones (even though it consisted of answers to that he “did following his admission rested by police), posed to her questions it,” ie., “head-butted” then-unidentified — opportunity had no to cross-examine At person interviewed Ms. Baker. trial, evidently her. At Ms. Baker was —she Baker, time, crying Ms. who had been prepared exonerate frantic, but lip, a swollen “wasn’t and had appar- government’s a result of but as “a little upset,” she and her voice was ently practically devastating routine shaky.” following question The and an- might incrimi- suggestion that Ms. Baker swer ensued: by testifying, nate herself so Baker admittedly of on advice induced— response this in THE Was COURT: counsel, and with concurrence by you, or did she blurt questioning privilege Jones’ invoke —to cir- something out ... ? were the [W]hat self-incrimination, against that the de- so cumstances? just exculpa- of an deprived fense was THE This would have been WITNESS: tory witness, evidently but of the favorable by me. questions Jones’ erstwhile accuser. by exchange This was followed a bench would, think, I These circumstances lead which, bus, ie., conference, ex- for reasons not Clapham the man on the rea- record, was not transcribed.2 plained intelligent impartial person sonably however, evidently ruled that judge, The esotérica, protest in legal unversed with permitted to relate Miller would be indignation “this is some not fair!” her, view, and the officer Moreover, Ms. Baker told government, provided the information in which prospect faced of a trial then described with Ms. Baker: complaining by witness well inflict a judge’s transcript The appeal (1) on absence 1. Two Jones’ contentions — defense, ruling by the been raised notwithstanding po- his has not admission lice, appeal. or against legally either in the trial court him was the evidence Cf. (the insufficient, (2) 10(a) appeal D.C.App. record on shall R. that Ms. Baker's unsworn alia, include, findings of fact and exculpating inter Jones should written statement court). the trial conclusions of law of admitted in evidence—are com- have been apprised the trial have not been we pletely without merit. The third contention— respect reasoning to one of the judge’s judge his discretion admit- abused party principal issues in the but neither ting Ms. Baker’s oral statement to utterance,” to this brought this remarkable omission is discussed Part an "excited opinion. court’s attention. I of this (D.D.C.1946),5 She told her got F.Supp. me and the defendant 971-73 therefore had no time reflect into a or tell a verbal altercation over her need held, We depending he. on the cir ing new tires on car because the cumstances, that a witness’ defendant, said, she slashed them the police questioning or may may qualify before, day and that he said he was for admission as an excited utterance. going pay. guess some pushing Portillo happening, started said. She (D.C.1998). key inquiries on grabbed his wrist both of her hands such presented facts as those here are her, so he couldn’t hit and that’s whether there is “less chance of fabrication her.[3] when he head-butted id. greater accuracy,” likelihood Spontaneous or excited utterances are 884, and, if allegedly spontaneous ut admitted on theory a universally terance in response questioning, —not accepted one 4—that the declarant was so whether interview conducted was precipitating excited event that he sponta “more deliberative nature than spell she was still “under of its Id. “The neous.” at 885. critical factor is Edmonds, effect,” United States 68 [whether] the declaration was made within *5 object 3. Jones' did not to the testimo- fluence of the or excitement shock caused ny that separate by witnessing Jones had committed a participating or in an ex- crime, i.e., event, traordinary slashed Ms. Baker's tires. as a such murder or a accident, unlikely serious is to fabricate an untruth, but, The entire basis contrary, [excited for the on the utterance] has ten- is, course, exception subject question. dency actually to to disclose what on his psychologists While probably would con- mind. The mental stress and nervous possi- cede that excitement the preclude minimizes strain bar deliberation and reflec- bility influencing of reflective self-interest spell tion. Declarations the made while statements, they ques- the declarant’s have They prac- endures are are uncontrolled. outweighed by tioned whether this be tically may reflex actions said be to be distorting the effect of shock and excite- images photographs verbal or con- upon ment the declarant’s observation and tents of brain. Such utterances are judgment. likely made be without calculation 2 John W. Strong, potential to their effect and without re- McCormick on Evidence 272, (5th ed.1999). § at 205 See also Hutch- gard possible consequences. They to their Exclamations, Schlesinger, Spontaneous ins & apt person be are the truth as the (1928) ("One 28 Colum. L. Rev. 437 need Consequently, knows it. it safe to ac- psychologist not be a distrust an observa- testimony cept expressions as to of this stress; everybody made tion under emotional type, opportunity even absence accepts such with statements mental reserva- gave person to cross-examine the who vent tion.”). to them. These form considerations underlying exception reason for explanation hearsay 5. The court’s lucid of the hearsay rule. exception spontaneous exclamations mer- F.Supp. 63 at 971. See also Beausoliel v. quotation its in full: States, 111, 113, App. 71 United D.C. 107 F.2d (1939) alia, (citing, Spontaneous exclamations uttered con- inter Wigmore, (2d ed.1923)) § temporaneously immediately (hearsay or after ex Evidence ception-for spontaneous applies an unusual occurrence and exclamations statements by person made thereafter a- who the "utterance is made where under im effect, spell still under the of its are mediate admis- and uncontrolled domination of the senses, during period sible in evidence form one the im- when brief con exceptions hearsay portant rule. It siderations of self-interest could not have recognized psychological fully phe- brought ais reflec bear reasoned tion, person making particular nomenon that an excla- taken utterance ly trustworthy.”). mation or a statement while under in- deceive, thought nobody it fleet also reasonably period short time after but question the declar- appropriate reopen occurrence so as to assure that or testimony on [her] ant has not reflected statement of Officer Miller’s admissibility premeditated or constructed it.” Smith Ev- Baker told her. regarding Ms. (D.C. United have known erybody knew should 1995) added; in citations and (emphasis may very supposed excited utterance omitted). quotation Before ternal marks lie, there a deliberate well have been admitting a statement under the “excited showing this no admissible evidence court should be exception, utterance” ig- so, reality therefore and the not reflect that “the declarant did satisfied nored. upon possibly invent a state event might reasonably sus- one Woodfolk, 656 ment.” States v. to Officer pect that Ms. Baker’s statement denied, (D.C.1995), cert. spontaneity and reliabili- Miller lacked 134 L.Ed.2d 516 U.S. S.Ct. it as an ty required to render admissible (1996). utterance, suspicion and this excited Miller, according In this if the court could compelling be even more “frantic,” nor Ms. Baker was not seemingly reli- consider defense counsel’s out, anything ques- blurt and an obvious Baker had admitted proffer able tion arises as to whether her police. to him that she had lied to spontane- questions Officer Miller’s was so and, proffer considering is not evidence op- ous and so excited that there was no only admitted and the duly portunity for reflection or fabrication liberality ap- growing with which we part. Immediately con- Ms. Baker’s after exception, plied the “excited utterance” *6 Baker, ferring with Ms. before see, 1150, I Woodfolk, 656 at e.g., privilege against Ms. Baker invoked her my colleagues that agree must self-incrimination, of- attorney Jones’ —an judge the trial not that defense did show reported judge ficer of the to the court — he admitted abused his discretion when Baker that probably say that “Ms. would testimony. especially This the officer’s reliability police.” she lied to The made no true when Jones’ counsel has representation was enhanced court, to attempt to the that, indicating fact that Ms. Baker had reconstruct, judge’s reasoning in ad- Miller, lying admitted to Officer evidence; I not see how we mitting do impossi- it effectively making counsel was finding can that Ms. Baker’s invalidate the his ble to secure Ms. Baker’s an excited utterance with- statement was II, Part Obvi- client’s behalf. See infra. judge said. knowing out ously, attorney told Jones’ have people most In reasonable judge Ms. Baker would admit that transcript, including entire who read the police if had not lying Ms. Baker that Ms. would believe proffer, counsel’s acknowledged to counsel that she had any “spell” not under when Baker was though so.6 But even it had been done was spoke police, her statement reliably represented to the court that Ms. photo- or a “verbal only re- not a “reflex action” evidently had time not Baker is, course, It of Ms. Baker’s children. possible sense the father of one It —common would, however, may probable suggests that it even difficult to determine —that true police to the was Ms. Baker’s statement true with- Baker's accounts which Ms. lying apparent her admission of and that testify. hearing seeing and out designed protect a falsehood itself brain,” Edmonds, graph [y]ou F.Supp. carefully it should consider before you call her ... she therefore had suffi- whether or not going say, she’s I in cient time effect lied to the to devise lie Officer Miller police there may out when told them such very told Never- have one. theless, such. judge, only considering record, properly evidence could ad- An was located to consult with report police mit Ms. Baker’s as an Unsurprisingly, Ms. Baker. on the attor- committing “excited utterance” without re- advice, ney’s Ms. Baker elected versible error. testify. “systemic problems”
complaining-witness-turned-potential-star- witness-for-the-defense saved the II. prosecution’s case from what could have turned out to be an ignominious rout. rested, prosecution After the and after judge judg- denied Jones’ motion for This created circumstance can acquittal, ment of attorney attempt- Jones’ fairly be It characterized ironic. ed to call Ms. Baker as a witness for the government’s theory at trial that Jones prosecutor, showing defense. The re- intentionally criminally head-butted markable rights solicitude for the of a words, according Ms. Baker. other witness to testify who had refused to the prosecution, Ms. Baker’s statement to government’s events, version of immedi- to the effect that Jones head- ately intervened:7 Yet, on purpose butted her was true. indicated, government counsel if Ms. Bak- Honor, THE Your if PROSECUTOR: were to er that Jones did not inten- may, we the Government believes tionally her, head-butt that the contact was Ms. Baker systemic problems (as accidental, she later told the .... The statements that she made to sentencing) fault, court at “it wasn’t his the officer are inconsistent with the ones gentleman,” and he’s a nice then Ms. Bak- that we believe she will make to the in danger prosecution by er was [cjourt today. lying police by tell- *7 words, In other government sug- was ing purpose- Miller that Jones had gesting, if Ms. Baker testified to facts ly danger head-butted her. But once the exonerating very she face prose- Ms. that Baker would contradict the disagreeable “systemic problems,” intri- theory (government cution’s was averted guing euphemism danger for the that she having process counsel a initiated prosecuted would be lying po- Fifth”), induced Ms. Baker to “take the lice.8 The judge swiftly picked up on the government again was free insist to once government’s suggestion, and told he that Ms. Baker’s to statement true, Jones’ counsel that duly convicted on personal 7. No prosecutor way criticism of a would have found to intended. experience, her intervention testimony make her available. at all unusual. course, might, pros- 8. The witness also fear to prosecutor duty As whether the had favorably perjury ecution for if she testified apprise judge "systemic Baker's pros- problems," 10, possibility Jones. The she be compare could infra, footnote with preceding yet the text ecuted for false that has it. if it had been the however, cannot, prosecution given and not fall within the the defense that been needed witness, Ms. Baker as against am privilege self-incrimination. confident
471 defendant’s is also affected—the Ms. Baker scenario which the basis present all right to Amendment probably have under oath Sixth described As evidence. exculpatory potentially if had not induced as false in Webb and, instead, recognized Court Supreme to invoke decline 351, Texas, S.Ct. [409 U.S. self-incrimination. privilege against (1972),] judges’ trial ... L.Ed.2d 330 right A criminal defendant’s in- witnesses’ protect efforts in his own defense a funda witnesses upon intrude impermissibly terests v. United mental one. Carter right produce evidence. defendants’ banc). (D.C.1996) (en The general- Perhaps that can be the most cannot, however, compel a wit defendant situations ly with confidence such said to incriminate herself. “[I]n ness duty to judges special have a is that trial crunch, fails, the Fifth when all else between wit- an accommodation seek privilege pre Amendment of the witness interests and nesses’ self-incrimination right compel vails over the defendant’s full production defendants’ interests “[bjeeause testify.” Id. But both [her] judge is not evidence. The of relevant precious[,] so and because rights are to her alerting the witness barred it painful, is so re forced election right, judge’s self-incrimination judge of the trial to take all sponsibility authority witness should to caution the to avoid a direct collision.” steps reasonable sparingly great exercised Id. caution.... rights The of the tension between partici- Permitting and of the unusu- defendant witness raises proba- admonishing the witness pate in and it is the ally problems, sensitive obli- bly risks over- poses substantial gation judge prose- and of the both reaching. this court has accordingly. cutor act As Harris, (quoting at 1283 n. stated, Strong, John W. on Evidence McCormick matter delicate in a [t]he becomes more ed.1992)) (4th n. § at 515-16 & 10 judge criminal trial when the becomes added); People v. Sha (emphasis see also concerned that a defense self- witness’s N.Y.2d 431 N.Y.S.2d piro, 50 rights may placed incrimination (1980).10 N.E.2d jeopardy. unfair The self-in- witness’s interests, course, prosecutor’s interven- are no effect crimination evident in this after it became less in such situations. But the defense tion Baker would any testimony Ms. particularly important has a interest *8 Carter, here, warnings to wit- quoted defense In en banc court or relied sented 9. the 1277, States, against upon regarding privilege United 614 A.2d self- Harris v. their nesses (D.C.1992), proposi- for all of the emphasized not be incrimination "must preceding paragraph tions this foot- in they instead into point where are transformed note. Id. The court of intimidation.” instruments however, recognized, that has Shapiro, emphasized In the court that 10. "obligation potential witnesses of to warn Amendment Sixth and Fourteenth "[o]ur liability un- for false statements possible their guarantees to insure that a criminal serve Moreover, in this der Id. oath.” game be won devolve into a trial does not representation was to the court prosecutor’s 431 N.Y.S.2d whatever the means.” or lost 422, witness, apparently was who to the not Therefore, accord- 409 N.E.2d not even in the courtroom. court, judges prosecutors ing to must pre- in restraint the kind of situation exercise government, not be favorable account, to the was to it. That in government said the keep Ms. Baker effect, off the witness stand. true if the witness invoked her purpose of that was not intervention privilege stand, not did take the but stated, explicitly reasonably can be might enough treated as false See, inferred e.g., from its effect. Rabi prosecution warrant a criminal of Ms. Bak- States, nowitz 366 F.2d 56 er if she privilege waived the and testified (5th Cir.1966). my opinion, govern In guilty. not “systemic ment’s to Ms. reference Baker’s me, At least something there is problems” started rolling the ball to the alarmingly with this wrong scenario. “But result, namely, inevitable end that Ms. is it fair?” Chief Justice Warren used Baker would on Jones’ behalf. ask appeared counsel who before That is government what the wanted O.M., Court. See re 565 A.2d happen, This happened. and that is what (D.C.1989) (concurring opinion). Surely, was, my judgment, in the realization of the in this the late Chief Justice’s answer danger against kind of which we warned in been “No!” Harris, 614 A.2d at n. (quoting in the lines we have italicized McCormick), III. quotation in my from that case. Unfortunately, Jones’ did not Perhaps I should pointed- describe more object prosecutor’s bringing role in ly just how adversarial pro- the adversarial privi about Ms. Baker’s invocation cess became in this criminal trial. Govern- lege against On the self-incrimination. knew, court, ment counsel advised contrary, enthusiastically defense counsel complaining erstwhile witness was it, signed on to in represented prepared give testimony exonerating court attorney, his trial has the defendant. The made it appeal.11 raised the issue on Jones cannot words, plain, though many not in if so come prevailing close un issue testify, Ms. Baker so then she would a “plain review, der error” standard of nor face the danger prosecution for “lying to exceptional this one those cases if, police.” order to in- avoid dispose which we appeal should herself, criminating Ms. Baker decided not deciding an issue not par raised either to give exculpatory she—if ty. Outlaw United 632 A.2d Cf. “systemic did not create problems”—then (D.C.1993), denied, 7n. cert. (and prosecuted Mr. Jones would be he 1326, 127 U.S. S.Ct. L.Ed.2d convicted) was in fact on the basis (1994). account, truthful, now claimed Nevertheless, given police, “big Baker had to the even it is a though privately when, she had at least recanted deal” as a of an intervention result counsel, taking 11. To be by raising fair he witness stand potential problems. well have been unsuccessful if he had tried to witness' Fifth Amendment re J.W.Y., object (D.C.1976), prosecutor's intrusion into the InIn court, however, balancing cautioning Fifth and Sixth Amendment after "the Harris, rights. adopted possibility prosecution may the case which of extrinsic not be *9 passage quot- [by government] from which I have as used the either carrot or McCormick, above, part, ed [potential was overruled in albeit on de stick induce the silence of witnesses],” grounds, by en other the banc court in Carter. fense nevertheless concluded that Carter, It is true in impropriety the court not there no where question address prosecutor "merely whether a subject for the District broach[ed] effectively may prospective potential liability.” dissuade a defense witness’ criminal played in this era or can be by prosecutor, game a is disabled is defendant astounding homicide important exculpatory organized crime and presenting where, testimony, especially in this as and witness intimidation rates guys would have come from off the street get need bad witness, erst I complaining the defendant’s slaughtered. innocents are before more Coupled with the while accuser. admis that, Ange- in this understand all but sion of an “excited utterance” which was conviction appealed lo has from his Jones subject to cross-examination not and, may guilty he although —he which, as Ms. Baker revealed significant evidently made a admission counsel, may well have been a deliberate by distressing am haunted a police—I he in to police questioning, told re- my did not reality. opinion, In “taking government-procured convicted, in He a fair trial. ceive brought a trial Fifth” Ms. Baker about of an unsworn statement part, on the basis compliance there have which Baker, could not be cross- who rules,12 which, in legal with all of the but examined, opportu- but he was denied my fair in the opinion, anything but nity sworn testimo- Ms. Baker’s meaning of that ad popular common-sense have ny, as to she could been cross- jective. duty, paraphrase Mr. “Our hardly That the most effec- examined. is in a Justice Holmes conversation with way tive to ascertain the truth. Hand, justice do Judge Learned is disconcerting to me is most what hope justice law apply but to of the record on the current state done.” Bifulco law, I, judge, appellate as and of the an 381, 402, U.S. 100 S.Ct. L.Ed.2d I anything what powerless am do about (1980) C.J., In (Burger, concurring). profoundly inquiry flawed regard as a case, I hope fear that we in vain. just happened night into on the twenty-first In the first decade hope that unusual combi- question. I justice is century, the of criminal world rulings, a funda- legal nation —correct one of hard-nosed realism. It would sure- re- mentally proceeding unfair —has idealistic, ly hopelessly be dismissed innocent in the conviction sulted naive, suggest for and even me even man. just as free to that witness should feel testify truthfully for as for the the defense
prosecution, and that no should possibility use the of self-
ever theoretical keep pro- a vehicle to
incrimination as
spective off the stand.13 defense witness told,
That, way surely I is not the litigation, fact, I lying in domestic relations point anything strable In I cannot 12. prosecutor did that violated the law or of most extreme cases referred four Perceiving no reversible error Attorney possible prosecu- ethical canon. for United States judge, Nellum, voted to affirm Jones’ I have perjury. Nellum Daily tion more conviction. But the whole sometimes No (Super.Ct.D.C.1985). L. Rptr. Wash. parts, and for the reasons than the sum of its perjur- prosecutions But none of ensued. very am uncomforta- in this stated indictment, notwithstanding escaped ers who we reached. with the result that ble cases, potential was a of their the referral prosecution. criminal defense witness days judge, when I was trial of demon- a veritable avalanche faced with