United States v. James Glenn, A/K/A James M. Green

LEVENTHAL, Bеfore ROBINSON Judges. ROBB, Circuit PER CURIAM: appellee indicted Glenn was of one the murder Juanita Johnson stabbing Before trial her with knife. suppress made he moved after Juanita Johnson minutes an received fatal and within wound hearing the of her hour After death. granted the motion to District Court appeals, suppress. The United States pursuant U.S.C. § (Supplement 104(a)(1) 23 D.C.Code § 1972). V, We reverse. contra- record without establishes

diction Johnson that Glenn and Juanita together apartment at 3407 lived Washington, Avenue, N.W., in Sherman ten o’clock D.C. Between nine and August 26, morning homicide, neighbor “arguing” 1970, a heard them heard Glenn tell Johnson Juanita “get they “quieted out”. Then down” apartment. and both left Juanita Johnson returned at one o’clock about four the afternoon o’clock around argument In a loud voice resumed. again Glenn told Juanita Johnson “get out, get Mrs. said out” and Johnson why “Glenn, you leave me don’t then alone?”. Glenn and Mrs. Johnson “ran down the hall” door heard the back slam. August

At about 4:20 Of- P.M. ficer Knox of was at the No. 10 Preсinct came in stationhouse when two citizens him and told that a woman on the side- walk outside seemed to be need clearly help. make out the out and saw Juanita I was unable He went precinct steps approaching name so I She ‍‌​‌​‌​‌​​‌​​​‌​​‌​​​​‌‌​‌‌‌​‌​‌​‌​‌‌​‌​​‌​​​​​‌‌‍re- last said “who”? Johnson plied: a blood “James Glenn”. then asked: from the sidewalk. She had dress about does live?”' on the left front “Where re- stain stipulated plied breast. It Sherman”. Then asked: “3407 hearing you?” parties the officer did he and she “What do to got testify replied, don’t he “I know because my me in back.” As she stated this . . I met her at bottom . the gestured her back and she toward steps up steps her the the and assisted I noticed that she had com- then blood my placing right her arm around ing from her back also. There was steadying and her back and shoulders not, however, enough from blood her helped my left her hand. I .As drip or the floor or front back to onto up steps precinct and into the she elsewhere. “Help Help I stated me.”. asked mе. her, happened?” “What and she re- When Juanita Johnson first at- plied, By tempted did it”. time we “He tell to me the name she gasped and were inside as she stated “He did as she stated the last name it”, pulled away why she from me and I to was unable clear- lunged ly repeated- the counter toward where Offi- understand her. She was working. cer I Buck Jackson was ly gasping appeared for breath and as repeat “Help though heard her to me. trying him: she was to scream but Help He it”. then get enough me. did I heard could not breath. her, Officer Jackson ask “Who did ****** reply, it?” I heard her “James Juanita Johnson remained at . . I . heard her ”. conversation approximately counter 20 to 30 making with Officer Jackson Ias was during seconds, which time the above my way precinct to the back of to place. conversation took Then I and right my wash blood from shirt helped Officer Knox her to chair. picked up sleeve which I had from Sitting periodically in the chair she Juanita Johnson’s in her wound back. groаned though moaned or as she stipulated testimony sitting pain. of Officer were in After there for Jackson, duty was began slump who on at counter about one minute she Precinct, at 10th was that he saw forward. After four minutes about Juanita slumped Johnson precinct, enter as- she had so much I feared she sisted propped Officer Knox and that would fall onto the floor I so up. I was still her back believe she approached . As she the coun- continued because she semi-conscious working ter where I was I observed a groan. small blood right stain on the front side of approxi- testimony her chest and Kalinofsky, also an Officer mately Sergeant one-inch Precinct, cut her dress in the Desk at No. 10 was approached “lunge area of the blood. As she he saw Juanita Johnson to- appeared though might she as she fall ward” Officer Jackson and then talk to lunged but instead she sort of him, Kalinofsky the sev- hear but did not steps necessary eral to traverse conversation. He Mrs. John- stated that five foot looking distance excited, appeared to the counter. was She son against up leaned help, gasping the counter for breath. was grasped my stating came, wrist as she He noticed “a small amount blood help help “Please me. helped Please me. He left After she was breast”. responded: did it.” I “go limp ‘he’ “Who is chair and lean he saw and what did replied: do?” She in her chair” and he called forward then though “James . . . ”. at for an The ambulance toоk [sic] ambulance. said, first Lynn” hospital “James but Mrs. Johnson to the where she was pronounced certain about the “James”. was dead 5:14 P.M. police stipulated walking person from bedroom A who the counter officers observed Mrs. Johnson Avenue at 8407 Sherman weak, more was that stationhouse travel Precinct would at No. 10 gasping apparently in for breath and feet. than 502 appear to pain not she did but that Brownlee, Deputy James William Dr. liquor, her She did smell drunk. for the Examiner Medical respond- speech was not slurred and she performed autopsy on Columbia, who coherently questions. quickly ed Johnson, she had two testified Mrs. held wounds, record the District Court significant one On this one in front and involving statement at back, that Mrs. Johnson’s the chest. both admissible, precinct either produced was not in the back wound The stab major dying bleeding right declaration or as a from chest into the causing vein, court based its artery “excited” utterance. The intercostal ruling factors: 1. Mrs. John- lungs collapse several and her heart to her her the time that Mrs. son did not believe at that doctor concluded shift. imminent; court death was 2. the was pain in from wounds was Johnson percent she was very seriously in- “not 100 certain” that was that she and knew shock; lapse a say in a state of was be- jured, not that she but he could the the fa- of time between infliction of He added was imminent. lieved death making peo- of the state- majority tal wounds and the ment; the “I not feel do that in Mrs. John- going and 4. the alcohol they ple to die”. feel are “unre- son’s blood made her statement opinion Mrs. In the doctor’s Johnson suspect”. liable and 45 “probably half an hour died within time the infliction minutes from the relating to the Declarations wound”; the at the most she would crime, a violent circumstances of made hour not have survived more than an shortly by the victim after its occur and a half. rence, in are sometimes evi admitted exceptions hearsay rule, autop- that the dence as Dr. Brownlee testified theоry upon sy presence that of the in mili- the shock disclosed of “0.28 jury gram percent moment in of alcohol” Juanita spon Although produced an utterance that blood. he testified Johnson’s distinguished person taneous and sincere as to con- that normal would have engendered by whiskey from design. ten ounces of in hour one deliberation and sume one explained admis percentage, Such statements this reach although response per- sible made in to an that was Mrs. Johnson not normal States, obese, inquiry. Guthrie v. 92 son. He found she suf- United that was fering U.S.App.D.C. 361, (1953); kidneys, F.2d 19 from arthritis of 207 States, App.D.C. displayed Beausoliel v. that signs she the metabolic United 71 Ill, are 107 292 Nor is it de found in a chronic alco- elapsed appreciable holic. He cisive that time concluded that as a “chronic injury user” between the infliction of the she had tolerance for alcohol and making certainly lose statement. not consciousness at blood; Kearney, the level found in her con- States v. 136 (1969); percentage trary, v. United he said that such a is 420 F.2d 170 Guthrie supra. highly major States, factor is “not in The decisive extensive alcohol- reasonably justi opinion His was that the circumstances ic”. that notwithstand- ing fy were the remarks in her the conclusion that alcohol blood Mrs. John- impetus reflec perceive son would have been not made under able justi Glenn, living, that tion. this conclusion whom she was Whether upon each case depends the facts of had stabbed in the in chest and fied baсk, giving capable was must be determined judicial of sound correct answer asked who had in the exercise Court n discretionary action is stabbed her. Such discretion. subject ley, (8 of course review and Wall.) 397, must be 19 L.Ed. U.S. clearly (1869); reversed if erroneous. Grant v. United App.D.C. (1906); Commonwealth v. On the facts of ease Pike, (57 Mass.) (Mass. 3 Cush. clearly think the District Court was Sup.Ct.1849) approval cited with error since Mrs. Johnson’s Supreme discussed ‍‌​‌​‌​‌​​‌​​​‌​​‌​​​​‌‌​‌‌‌​‌​‌​‌​‌‌​‌​​‌​​​​​‌‌‍Court In- plainly was admissible as a (8 Wall.) surance Mosley, Co. v. 75 U.S. utterance. at 406.1 From the of Dr. Brownlee Had this issue arisen on the probably Mrs. Johnson died within person trial of another for the homicide half an hour or 45 after minutes she had we would be shocked if the court had stabbed, proof been No. 10 kept jury from the the decedent’s state only Precinct was about 500 feet from ment Glenn and not the defendant stabbing, plain the scene of the it is guilty on trial was the man. We think Mrs. Johnson made her statement the rule should be neutral as between fatally minutes after was stabbed. prosecution and defense. bleeding wounds, She was from her pain, gasping breath, grant- The order of and about the District Court lapse ing appellee’s suppress into unconsciousness followed motion to is re- death. Her situation versed conducive and the case is remanded for deliberation; trial. detached reflection and contrary only on the the reasonable con- It is so ordered. proof clusion from the uncontradicted is spoke grip when inwas the ROBINSON, III, W. SPOTTSWOOD high short, excitement. In in the as Judge, dissenting: Circuit Kearney case, supra, the circumstances possibility rebut “the truth was un- My colleagues, believe, sup- I have by speculation dercut or fabrication.” planted Judge’s evidentiary the District percentage The in alcohol Mrs. John- ruling ruling they with the would have blood, son’s which troubled the District acting they made had been in his stead. Court, was a factor that went to the my view, That, in is neither our func- weight declaration, of her its ad- prerogative. must, tion nor our there- missibility. Had she survived and been respectfully fore, dissent. against appellee, called as a witness the received, would have been weight and its would have been for the jury. jury Likewise was for the weigh precepts Two wholesome heavi- assay weight the of her dec- appellate upon ly on an court called laration. rulings by evidentiary review trial a In addition to Anglo- the cases we have cited The is first the court. many support there are others that the American law evidence vests exclu- admission of Mrs. Johnsоn’s statement. sively judge in the task of es- trial the See, example, tablishing admissibility, Insurance Co. Mos- the or inadmis- Supreme On November 1972 the made while the declarant was under prescribed Court transmitted the of excitement the stress caused Congress rules of evidence for United event or condition. Magistrates. provides part: States Courts Rules Rule in recognize approve hearsay 803 and the When has been principles applied evidence, credibility we have here. Thus admitted in prоvides part: may Rule 803 in attacked, the declarant be and if following by any supported, are not excluded be attacked hearsay rule, though even the declarant evidence would be admissible for which purposes is available as a witness: those declarant had testified Excited, utterance. —A statement a witness. as relating startling a event or condition facts, preliminary appraisal of judge’s instance.1 sibility first of evidence over- his special justification alloca- feel of the case for this An obvious admissibility judge’s in a judgment responsibility on lies tion of —all very trial of the ready in- factual nature flash. The access to direct and judge be trial to ad- that the process decision on which the demands formation exploit inti- indulged leeway frequently some mit exclude must or rulings grounded. macy on of- matters. For evidence trial prelim- ten determinations necessitate definition, “Discretion,” by involves spon- inary facts, as did choice, exertion of of an idea of рroffered taneity of statements competing will, of selection between required which the Supreme Court considerations.4 here. to make proper exercise its described has judgment closely recently in a al- of conscientious As observed use we “ the law and context, account lied . . . takes case particular circumstances is not the tradi The trial court con- reason and ‘is directed superior tribunal tional but also the ” 5 just judge result.’ science of the informatiоn-gathering kind of for the discretionary turns act And where upon rul sound its which a foundation [for factual determina- an antecedent requires. ing] inevitably . . '. here, tion, of discre- “an abuse as it does hearing, that, For it is difference far more than tion involves can come face-to-face with judicial opinion the trial between sources, primary informational challenged ac- appellate courts.”6 The probe obscure, trap is what what said, must, be found tion “arbitrary, elusive, what is cоnt and settle clearly fanciful, unreasona- roversial.2 ble,” “clearly in order erroneous”8 appeal. If, on the to be invalidated principle the trial second hand, dif- men other could reasonable resolution ad- court’s of a then cannot propriety, fer as to its it missibility of evidence disturbed be judge the trial abused be said that appeal only in the event discretion.9 amounts, idiom, in the familiar to an abuse of that Rul- appeal court’s discretion.3 this is a Thus the ings of that summon very sort the trial the Dis- narrow one. It is whether Wigmore, (3d 1. 382, 9 Spalding Spalding, § Evidence 2550 ed. 4. v. 355 Mich. 1940) ; McCormick, 810, (1959). Law of § Evidence 94 N.W.2d 811 recently (1954). proposed 53 Rules 216, States, 5. Burns v. United 287 U.S. of Evidence the United States 156, 222-223, 154, L.Ed. 266 53 S.Ct. 77 Magistrates, Courts and sub- which were (1932), quoting Langnes Green, v. 282 Supreme Congress by mitted to Court 531, 541, 243, 520 U.S. 51 75 L.Ed. S.Ct. 20, prin- 1972, on November adhere to the (1931). ciple evidentiary matters are by preliminarily judge. 4, Spalding Spalding, supra resolved trial 6. v. note 94 proposed 104(a) See Eed.R. Evidence N.W.2d at 811. Advisory accompanying and the Com- McWilliams, 7. United v. Stаtes U.S. 82 mittee Note. App.D.C. 259, 261, 695, 163 F.2d 697 Stanley, (1947). U.S.App. 2. United States 152 v. 170, D.C. 469 F.2d 576 supra Hardin, 3, 8. United v. States note 322, .143 at 443 F.2d at U.S.App. Hardin, 3. United v. States 143 737; States, supra v. Beausoliel United 322, ; 320, 735, F.2d D.C. 443 737 App.D.C. 3, 114, note at 71 107 F.2d Comer, U.S.App. United States v. 137 214, 3, 1149, F.2d D.C. 217 n. 421 1152 (1970) ; Ry., 965, n. v. 3 Beausoliel 9. Delno Market 124 St. F.2d App.D.C. 113-114, 292, 111, 1942). (9th 71 Cir. (1939) ; Bailes, 294-295 F. Guest v. (6th 1971). 2d Cir. Judge’s evidentiary hearsay requires by trict is with- rule a determination by any is, (a) out foundation reasonable the trial court that the declarant token, clearly (b) physical am the same erroneous. was in a state of shock generated say that it is. unable to of stress nervous (c) sufficient to his re- still party When a seeks to introduce thereby preventing faculties, flective evidence, hearsay party bears any opportunity for deliberation which showing proffered of burden might lead the declarant be exceptions statement fits into one untruthful.15 outlawing Excep- to the rule hearsay.10 application of this test must of exclusionary tions to the rule necessity depend peculiar on the facts grown up only in instances where there еach case.16 The trial assess must necessity ais strict for the evidence and the amount time which has surrounding circumstances insure elapsed shocking ‍‌​‌​‌​‌​​‌​​​‌​​‌​​​​‌‌​‌‌‌​‌​‌​‌​‌‌​‌​​‌​​​​​‌‌‍between the event and high degree of trustworthiness.11 Thus statement, also the but declarant’s court, others, in common with has activities attitudes the mean- held that exclamations the victim while, to if there determine was occasion crime are sometimes on the admissible for deviation from the truth under the theory that the victim a state impetus of reflection.17 Our function is physical producing shock condition to abide that unless it assessment suspend nervous excitement sufficient to plainly wrong.18 the deliberative faculties which other- might wise allow him to fabricate II An utterance made under statements.12 an “immediate and appeal domina- uncontrolled record on discloses that during peri- tion the senses”13 disposal a brief the District had at Court its od when stipulated police considerations self-interest officers brought fully cannot bе to bear rea- who assisted the decedent at station- thought possess soned reflection is house at the time she made state- requisite sum, sought portion admitted, In ad- ments reliability.14 of a statement made decedent’s “spon- mission of under the police, exception to the tes- extensive taneous utterance” endured; g., Bailes, supra 10. E. further observes Guest v. note “pat question, are answers” 448 F.2d long prevail?” can excitement “How Wigmore, (3d 11. 5 Evidence ed. § Advisory Note, Fed.B. Evi- Committee 1940). 803(2). dence supra States, 12. Beausoliel v. United note States, supra note 16. Beausoliel v. United 3, App.D.C. 113, at 71 107 F.2d at 294. 295; App.D.C. 114, 3, at F.2d at 107 71 Wigmore, See also 6 Evidence § 1747 (3d Wigmore, ed. § 1750 6 Evidence (3d 1940). , ed. g. 1940). v. e. United States See also U.S.App.D.C. 333, Kearney, 328, States, supra 13. 420 Beausoliel v. 136 United note Lampe 3, App.D.C. 170, (1969) ; 113, United at v. 71 F.2d 175 107 at 294. F.2d 162, 160, States, U.S.App.D.C. 229 97 Id. 14. 43, denied, (1956), cert. 359 U.S. 45 F.2d hearsay exception spontaneous (1959) ; 15. 612, 929, for L.Ed.2d 631 79 S.Ct. 3 incorporated pro- States, U.S.App. utterances posed into the 93 Wheeler Evidence, 24-25, 159, 164-165, 19, Federаl Buies of see 211 F.2d D.C. permits 1, supra. 803(2) 876, 1019, denied, note Buie ad- 347 74 S.Ct. cert. U.S. relating ; mission “a of to a Guthrie v. United L.Ed. 1140 98 startling 365, U.S.App.D.C. 361, event condition made while 207 19, (1953). the declarant was under the stress of ex- F.2d citement caused the event or condi- Kearney, supra 17. note United States v. tion.” Fed.B. Evidence 803 The Ad- at 333 n. visory points Committee out that admis- at n. 11. sibility hinges on whether utterance supra was made while pertained be it an ance would useless inaccurately States, supra note recalled. 21. In v. United event obsеrved Guthrie “pain- spontaneity 16, itself en- also issue of the trial court conducted But compasses inquiry staking inquiry” as well— into the circumstances another alleged was of which whether or not and conditions under We, pre- made. as to utterance was such character and duration opportunity any turn, exer- false- that such careful clude calculated in observed judicial be discretion should of hood. cise appeal most com- for “the disturbed 365, question pelling 20. the Dis- which troubled reason.” light concerning high Judge In of the District al- at 23. trict blood here, not, my Judge’s colleagues I exercise level does ns effort cohol suggest, merely weight go to the same restraint. invoking party it. period injury indifferent for the entire shock of challenged encoun- here long The statements have it time—however of difficulty to exoner- ter whether offered the sta- arrived been—before They ‍‌​‌​‌​‌​​‌​​​‌​​‌​​​​‌‌​‌‌‌​‌​‌​‌​‌‌​‌​​‌​​​​​‌‌‍no say become unwilling ate or to incriminate.25 that am tionhouse appellant by more to сondemn admissible existed conclud- no basis reasonable they naming might him would have been ing than not have decedent somebody they acquit him had named power lost to deliberate. focusing Judge, else. The District sought to be intro- statements of but on on the the utterances content appellee’s of the most trial are duced at they which the circumstances under prejudicial sort, and the District made, beyond deemed were them required accordingly to exercise According spontaneity. pale de- of assessing particular in their care due, respect is termination the reliability.23 may be an- While would affirm. might resolved other trial differently, admissibility of against guard appellate judge must merely temptation to his substitute acting judgment own judge for that of scrutinizing of exercises This, sure, grim is discretion. case, to be Joseph ASSALONE, Appellant, Sr., permit- grimness but its cannot standards, proper

ted to obscure either L. al. Edward CAREY et admissibility or review. of the United Trustees Mine Workers ruling challenge I think the under America Welfare Fund and Retirement quite spon- easily passes muster. of 1950. taneity sought statements No. 71-1878. open question. introduced is to serious Appeals, Court of States Judge’s The District on' that conclusion District Columbia Circuit. score within falls well the zone rea- 28, Dec. 1972. part, reviewing sonableness. For our action, we would well to do recall analogous what we in an said situation: is, reiterate, The matter one for and, discretion;

the exercise of as is

generally judi- in accord sound administration,

cial is that discretion respect appropriately

to be accorded a inescapable

reflective of the remote- appellate

ness of review.24 my colleagues,

Like spon- I believe the exception

taneous exclamation is a rule agree plаin” I cannot that “it cerning arguments between the decedent “only the decedent made her statement appellee throughout which recurred fatally minutes” after she was period stabbed. they together. in which lived p. supra. See There evidence hostility This evidence warrants even precisely apart- as to when greater left caution on statements ment, just got nor do we know how she prior making could Crediting ap- to the stationhouse. opportunity have been an for fabrication. proximations of the decedent’s U.S.App. Luck v. United Knox, twenty and Officer some minutes 151, 157, D.C. 348 F.2d elapsed departure between her from home precinct. and arrival at the 25. The statements were not of a confes- sionary Wigmore, nature. See 5 Evidence The District (3d 1940) ; makes proposed § 1476 ed. Eed.R. specific given mention of 804(b) accompanying Evidence police decedent’s Advisory con- Committee Note. state of text notes at 3-7. See Brownlee, recognized timony J. could have who at- William decedent Dr. Deputy Dis- it Examiner for the tacked her were someone Medical Columbia, performed an au- had lived for six or seven of who whom she trict months, topsy and that she could have correct- on the decedent. ly questions put answered the to at dece- Dr. Brownlee indicated that the regarding her attack- stationhouse grave na- dent’s wounds were of such a identity. er’s person ture that a who had suffered go and, testimony, them into the Dis- would shock But even with opinion, factors not have survived more trict realized that the to would evaluating spon- medical be than an hour and a half considered without taneity appears then, of treatment. It that some- utterances are not declar- thing ability to at the time of less an hour and a half tran- ant’s observe than ability spired incident, declarant’s between infliction of the nor the key responses happened.19 to wounds recount what and the decedent’s to by Dr. officers at the stationhouse. The criti- left unanswered Brown- Judge’s inquiry lee cal focus of the was whether the could have District decedent making during prior or not undeter- reflected her state- whether period might ments, of other witness the case mined time the decedent question. reflecting supplied capability have had the an answer naming appellee ‍‌​‌​‌​‌​​‌​​​‌​​‌​​​​‌‌​‌‌‌​‌​‌​‌​‌‌​‌​​‌​​​​​‌‌‍at- answers as her suggests the medical While tacker. pain probably the decedent had injuries, from her it also indicates that Dr. Brownlee testified that at she had consumed would have blood con- alcohol time the victim’s death her analgesic. per extent as served some tained cent volume. .28 alcohol this could have alleviated the Whether pain enough His examination also revealed that she deliberation, permit physiological was signs bore the obese and in an the risk of contrivance inherent of a chronic user characteristic pos- deliberation, opportunity opinion, for cannоt such In Dr. Brownlee’s alcohol. decisively sibly from the higher person be determined would obtain blood presented length evidence a shorter level of alcohol within Judge.20 any individual, Nor can there be doubt than would normal time thorough higher effort conscientious and would also have a tolerance question. The of transcript to resolve this stated further alcohol. He hearing say on the motion impossible him to would suppress statements the decedent’s the decedent’s what bloоd alcohol level pages hundred auditory in excess perceptions consumes and visual testimony by thirty Dr. per contain impaired, become but .28 transcript Nothing changes in that Brownlee.21 had some she would have cent light re- perceptions, whether decedent’s and audi- sheds in her tory. both visual impaired by Nevertheless, were flective faculties that the believed If the alcohol dull- statement. This not to diminish relevance decedent’s sufficiently reflection, pain powers to allow ed the the decedent’s of observation Clearly would be inadmissible. utter- the statement recollection.

Case Details

Case Name: United States v. James Glenn, A/K/A James M. Green

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 30, 1973

Citation: 473 F.2d 191

Docket Number: 71-1865

Court Abbreviation: D.C. Cir.