APPEAL FROM THE SUPERIOR COURT, CRIMINAL DIVISION, RHONDA REID WINSTON, J. [719 A2d Page 504]
Before Steadman, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge:
After a bench trial, Fransisco *fn1 Reyes-Contreras was convicted of simple assault, in violation of D.C.Code § 22-504 (1996). He filed a timely appeal contending that the trial court erred by permitting the admission of certain statements by the complainant under the spontaneous utterance exception to the hearsay rule; and by denying him the opportunity to make a missing witness argument during his closing statement. We affirm. We recognize as binding on us the holding of the United States Supreme Court in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 [719 A2d Page 505]
L.Ed.2d 848 (1992) that no showing of a declarant's unavailability for trial is required under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States before a declarant's spontaneous utterance may be admitted into evidence as an exception to the hearsay rule. In addition, we hold that under traditional rules of hearsay evidence, there is no unavailability requirement for the admission of a spontaneous utterance. Finally, we conclude that the trial court did not err in admitting the complainant's declarations as spontaneous utterances; and did not abuse its discretion by prohibiting defense counsel from making a missing witness argument during closing statement.
Through its sole witness at trial, the government showed that on the afternoon of October 26, 1996, District of Columbia Metropolitan Police Officer Brett Parson was on routine patrol in the 1000 block of Irving Street, in the Northwest quadrant of the District of Columbia. At approximately 3:20 p.m., Officer Parson was flagged down by a crying, yelling, and visibly upset woman, later identified as Angelica Gomez. When asked what the woman looked like when he first saw her, Officer Parson stated: "She was waving her arms. She was crying. [S]he had a bruise on her face. [S]he was also bleeding from I believe it was her chin area or just by her ear." Officer Parson described Polaroid pictures he had taken of Ms. Gomez just after he arrested Mr. Reyes-Contreras. The pictures revealed a bloody mark just below Ms. Gomez's left ear, a bruise and some swelling on the left side of her chin below her lip, and red marks on the left side of her neck.
As she flagged down Officer Parson, Ms. Gomez spoke primarily in Spanish, but uttered some words in English. Officer Parson, who understood and spoke Spanish, testified that Ms. Gomez was waving her hands, and pointing to her husband, Mr. Reyes-Contreras. When the prosecutor asked Officer Parson what Ms. Gomez was saying, defense counsel objected on the grounds that: "[I]t's hearsay, and it's a violation of Mr. Reyes[-]Contreras['s] right under the confrontation clause for this testimony to be admitted." The trial judge overruled the objection under the excited [or spontaneous] utterance exception to the hearsay rule. Defense counsel asserted: "[T]he prosecution hasn't demonstrated the unavailability of the declarant." The trial judge responded: "That's not a requirement." Officer Parson then testified: "As I was getting out of the scout car, she yelled to me, 'He hit me. He hit me.' " Ms. Gomez explained to the officer that Mr. Reyes-Contreras was her husband, and he had punched her repeatedly thirty minutes earlier. She stated that after her husband hit her, he walked away, and she followed to look for a police officer while she kept her husband in sight.
The defense called no witnesses, and presented no evidence. After closing arguments, the trial court found Mr. Reyes-Contreras guilty of simple assault.
Mr. Reyes-Contreras contends that the trial court should not have permitted Officer Parson to testify about Ms. Gomez's hearsay statements which indicated that he hit her. He argues that his Sixth Amendment constitutional right to confrontation was violated because Ms. Gomez's statements do not fall under the excited or spontaneous utterance exception to the hearsay rule, and because the government failed to show Ms. Gomez was unavailable for testimony at trial. He also challenges his conviction on the ground that the court should have permitted him to present a missing witness argument during his closing statement. The government contends that Ms. Gomez's statements were properly admitted under the spontaneous utterance exception to the hearsay rule; there is no unavailability requirement under the Confrontation Clause for the admission of a spontaneous utterance; and the trial court did not abuse its discretion by prohibiting defense counsel from making a missing witness argument during her closing statement.
The Spontaneous Utterance Issue
"The admissibility of a spontaneous utterance 'is committed to the sound discretion of the trial court. We will reverse on [719 A2d Page 506]
appeal only if a ruling is clearly erroneous.' " Lyons v. United States, 683 A.2d 1080, 1083 (D.C. 1996) (quoting Alston v. United States, 462 A.2d 1122, 1128 (D.C. 1983) (citations omitted)). In order to admit a statement under this exception to the hearsay rule, three factors must be met:
(1) the presence of a serious occurrence which causes a state of nervous excitement 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 ...