April 10, 1995
UNITED STATES, APPELLANT AND CROSS-APPELLEE,
FLOYD C. WOODFOLK, APPELLEE AND CROSS-APPELLANT.
Appeal from the Superior Court of the District of Columbia. (Hon. Wendell P. Gardner, Jr., Trial Judge).
Before Steadman, Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: During a search of Floyd Woodfolk's home, police found a 9 mm semiautomatic Luger ("Tech 9") with a loaded magazine in a white plastic bag near Woodfolk's bedroom. In test-firing the gun to determine operability, it was discovered that the magazine found in the gun was defective in that it failed to properly feed bullets into the chamber of the gun; however, when a new properly functioning magazine was inserted, the gun readily fired multiple rounds.
The jury found Woodfolk guilty of possession of a prohibited weapon (machine gun) in violation of D.C. Code § 22-3214(a); possession of an unregistered firearm in violation of D.C. Code §§ 6-2311(a) and 6-2376; and unlawful possession of ammunition in violation of D.C. Code §§ 6-2361 and 6-2376. *fn1 However, notwithstanding the jury verdict, the trial court entered a judgment of acquittal on the charge of possession of a prohibited weapon (machine gun). It ruled that the gun with its defective magazine did not meet the statutory definition of a "machine gun" under D.C. Code § 22-3201; viz., "any firearm which shoots automatically or semiautomatically more than 12 shots without reloading."
Before us are cross-appeals. The government challenges the trial court's legal interpretation of the statutory definition of a machine gun, as applied to the facts here. Woodfolk challenges the trial court's evidentiary ruling admitting as an excited utterance the 911 tape of the telephone call from Woodfolk's girl friend which led to the police search. *fn2 We hold that the trial court erred in entering the judgment of acquittal and reinstate the jury verdict of guilty on the count of possession of a prohibited weapon (machine gun). We affirm Woodfolk's other convictions as well.
On May 25, 1991, at 9:48 a.m., a woman named Wendy Carter called 911 from a house in Southeast D.C. Ms. Carter told the dispatcher that she would like to have police sent to her boyfriend's house, because she wanted to leave. When the dispatcher asked whether Ms. Carter's boyfriend wouldn't let her go, Ms. Carter responded, "No -- he, he owns a gun." She answered yes when the dispatcher asked if she had seen the gun. The dispatcher then asked, "So he has a gun on you?" and Ms. Carter replied, "He's here and he owns a gun. I want to leave and I'm scared he might do something to me." She identified her boyfriend as Floyd Woodfolk, and when the dispatcher asked for a description, Ms. Carter said, "...could you please hurry?" The dispatcher then relayed the information to several police officers, who responded to the call.
When the police arrived, Ms. Carter met them at the front door. She was wearing bedroom attire and appeared to be scared and nervous. Ms. Carter asked the officers to find the gun and led them down to the basement. When they got downstairs, the officers saw Woodfolk lying in bed, in a makeshift bedroom area that was partially partitioned off from the rest of the room. The room contained a crib for the couple's baby, who was in the home, and there was a large amount of women's clothing strewn about. After a continued search of some minutes, following various suggestions of Ms. Carter, the officers found the white bag, inside of which was the gun, containing a magazine loaded with 18 rounds of 9 mm ammunition, near the bedroom area under the rear of the interior steps leading down into the basement.
On October 9, 1991, Officer David Proulx test-fired the gun, using the magazine that had been recovered from Woodfolk's home. Officer Proulx found that the weapon was operable in the sense that it could fire a single bullet, but that the magazine would not feed properly for semi-automatic repetition. He concluded that the magazine probably had a bent lip.
A few days later, Officer Walter Dandridge of the firearms section of the Criminal Investigations Division performed a second test-fire of the gun. In order to complete this test, Officer Dandridge removed the magazine that was found with the gun, and used another magazine made for that type of weapon, which was in the firearms section's collection. Officer Dandridge fired the gun for 13 consecutive shots without reloading. He testified at trial that there was no question that the gun was capable of firing 13 rounds when it was equipped with a magazine that functioned properly.
D.C. Code § 22-3214(a) outlaws the possession of certain specified weapons, including "any machine gun." *fn3 A machine gun is defined for purposes of the prohibited weapons statute as "any firearm which shoots automatically or semiautomatically more than 12 shots without reloading." D.C. Code § 22-3201(c). Woodfolk in substance makes the argument, which the trial court accepted, that the magazine must be considered an integral part of the firearm itself. On that theory, he invokes, as did the trial court, our holding in Curtice v. United States, 488 A.2d 917 (D.C. 1985). That case involved a pistol with a defective spring that prevented the pistol from firing. Although the problem was readily rectified by simply stretching the spring, we held that since it required expert knowledge to diagnose what the defect was and since no evidence was presented to show that the defendant had such knowledge, the government had failed to prove beyond a reasonable doubt that the pistol was "operable."
We cannot agree that as a matter of law, a magazine must be deemed an integral part of a machine gun so that the "expertise" test of Curtice is determinative. *fn4 Officer Dandridge, who was qualified as an expert on the subject of firearms testing, testified that a magazine was not an integral part of the machine gun itself but rather an accessory. He testified that when buying a machine gun, one often will get two magazines to go with the weapon. Similarly, Officers Lucas and Baxter, who responded to the radio run, *fn5 testified without objection that the magazine was not a part of the gun but was separate. Officer Baxter described the magazine as "just a reservoir for holding ammunition." Officer Lucas said that the magazine was "an accessory, separate in itself." Other testimony and pictures shown to the jury also demonstrated the ready removability and separate nature of the magazine.
Congress enacted D.C. Code § 22-3214(a) in 1932, prohibiting the mere possession of certain weapons, "to enforce drastically a prohibition against carrying particularly dangerous weapons within the District of Columbia." Worthy v. United States, 420 A.2d 1216, 1218 (D.C. 1980). The legislative intent was to strengthen the existing law and tighten controls over the possession of dangerous weapons. United States v. Parker, 185 A.2d 913, 914 (D.C. 1962). We explained the legislature's rationale by stating that "the weapons listed in subsection (a) are so highly suspect and devoid of lawful use that their mere possession is forbidden." Worthy, supra at 1218 (citing United States v. Brooks, 330 A.2d 245, 247 (D.C. 1974)).
Similarly, we looked at the legislature's intent when we interpreted a D.C. statute that required registration of all firearms within the District, outlawed possession of unregistered firearms, and specifically stated that registration certificates could not be issued for machine guns. *fn6 We concluded that when the legislature excluded machine guns from those firearms which could lawfully be registered, *fn7 the legislature was "concerned primarily with the inherent fire power of certain weapons, not with the question of firearm modification after registration. The rationale supporting this provision to prohibit residents of the District from possessing guns whose fire power has legislatively been deemed to be dangerous.. .." Fesjian v. Jefferson, 399 A.2d 861, 865 (D.C. 1979). Hence, we held, even though the machine guns in question were presented for registration with clips holding less than 12 rounds, "since the guns in question, by virtue of their structure, had the capability to shoot the prohibited number of rounds without reloading, they may properly be found to be unregisterable." Id. We think a somewhat similar focus underlies the statute before us.
It is true that the registration statute in Fesjian defines a machine gun as "any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot . . . semiautomatically more than 12 shots without manual reloading." D.C. Code § 6-2302(10). This is a fuller definition than that contained in § 22-3201(c) and could lead to different results in particular cases. See Townsend v. United States, 559 A.2d 1319 (D.C. 1989) (unregistered pistol missing firing pin and spring mechanisms was unlawfully possessed under D.C. Code § 6-2311(a) even if not "operable" for purposes of D.C. Code § 22-3204). However, in Fesjian we were dealing with constitutional issues and addressed the statutory purposes in broad terms. Given the expansive definitional language that, as we noted, "clearly" prohibited registration of the firearms in question, Fesjian, 399 A.2d at 865, we had no occasion to address further the issue presented in this case.
We observe that the 1932 Act imposing the flat ban on possession of machine guns also contained a provision barring the carrying of a pistol without a license, now appearing as D.C. Code § 22-3204. We have construed that provision as requiring proof that the pistol in question be "operable." Anderson v. United States, 326 A.2d 807 (D.C. 1974), cert. denied, 420 U.S. 978, 43 L. Ed. 2d 659, 95 S. Ct. 1405 (1975). *fn8 Nonetheless, "one is guilty of carrying a pistol without a license even if he or she carries an unloaded, but unlicensed, pistol." Comber v. United States, 584 A.2d 26, 51 n.39 (D.C. 1990) (en banc). See also Morrison, supra, 417 A.2d at 412 n.2. *fn9 Rather, the inquiry is whether the firearm "was a 'device capable of propelling a projectile by explosive force.'" Townsend v. United States, supra, 599 A.2d at 1320 (emphasis in original). *fn10 If this is so with respect to a statute that limits only the carrying of an unlicensed pistol in public, *fn11 surely the same considerations apply with at least equal force to a provision imposing an absolute ban on possession. *fn12
In sum, we think the legislative intent here was to focus on the core components of what in common parlance constitutes a "machine gun." See Lee v. United States, 402 A.2d 840, 841 (D.C. 1979) ("a firearm is by common usage a device capable of propelling a projectile by explosive force" (emphasis added)). Analogies can be dangerous, but the situation here might be likened to, say, a statute that banned outright the possession of a "camera." If a person were found in possession of a camera with a defective film canister, we think the statute nonetheless could be fairly construed to have been violated. For the reasons set forth above, we conclude a similar analysis applies here. "We cannot, therefore, rule as a matter of law that the in this case did not fall within the proscription of [§ 22-3214]. The question was [at the very least] properly left to the jury." Rouse v. United States, supra, 391 A.2d at 792. *fn13
The trial Judge admitted the 911 tape into evidence as an excited utterance. The admissibility of a spontaneous utterance is committed to the sound judicial discretion of the trial court, and we will reverse only if the ruling is clearly erroneous. Alston v. United States, 462 A.2d 1122, 1128 (D.C. 1983). In order for a statement to qualify as an excited utterance, there must be (1) a startling event which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a sufficiently short period of time after the occurrence to ensure that the declarant did not reflect upon the event and possibly invent a statement, and (3) circumstances which in their totality suggest spontaneity and sincerity of the remark. Price v. United States, 545 A.2d 1219, 1226 (D.C. 1988). *fn14 Appellant argues that there is no evidence in this case of a specific startling event, and therefore no evidence whether the declaration was made without time to reflect.
We may assume for present purposes that the mere making of the statement itself cannot alone serve as sufficient evidence of the occurrence of a startling event. *fn15 However, only in the unusual case will there be a complete lack of evidence, direct or circumstantial, to indicate whether an event has occurred that could account for the excitedness of the utterance. "Fortunately, only a very few cases need actually confront this knotty theoretical problem if the courts view the independent evidence concept broadly, as they should where the circumstances and content of the statement indicate trustworthiness." 2 MCCORMICK ON EVIDENCE § 272, at 217-18 (4th ed. 1992).
As we have often noted, "circumstantial evidence may be equally as probative as direct evidence." Gayden v. United States, 584 A.2d 578, 579 (D.C. 1990), cert. denied, 502 U.S. 843, 116 L. Ed. 2d 104, 112 S. Ct. 137 (1991). Here, the trial court was presented with far more than a disembodied abstract statement. To the contrary, much was known and could be inferred about the surrounding circumstances. The trial court, in finding that the 911 tape constituted an excited utterance, noted the declarant's expressed fear, the presence of a gun in the house, and the sense of urgency (both in Ms. Carter's tone of voice and in her request "please hurry"). *fn16 The court discounted the argument that the presence of the gun could be a startling event only when it was first brought into the house; no matter how long the gun had been in the house, the court ruled, it was clearly causing Ms. Carter acute concern at the time that she made the 911 call. Furthermore, the trial court found that the circumstances of Ms. Carter's calling the police supported the existence of a startling event, since a person does not normally call the police when she merely wants to leave a house. Finally, the record contained further evidence corroborating the existence of a startling event: the officers found Ms. Carter in a nervous and upset frame of mind, and the officers did in fact locate the gun in the house. Every detail of the startling event need not have been known as long as sufficient circumstantial evidence demonstrated that some startling event occurred and it was in a state of nervous shock following that event that Ms. Carter made the 911 call. *fn17
Accordingly, the entry of a judgment of acquittal on the count of possession of a prohibited weapon is vacated and the case remanded to the trial court with instructions to enter a judgment of conviction on that count upon the verdict of the jury and to impose appropriate sentencing. The other convictions are affirmed.