Appeal from the Superior Court of the District of Columbia (M-13355-01) (Hon. John R. Hess, Trial Judge)
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Per Curiam
Concurring opinion by Associate Judge SCHWELB at p.4.
Appellant, Angelo Jones, appeals his conviction at a bench trial of simple assault arising out of an apparent domestic dispute. D.C. Code § 22-504 (1981). He raises three arguments for reversal. We affirm.
1. Insufficiency of the evidence:
We review this assertion under the oft-repeated and well-established standard, viewing the evidence in the light most favorable to the government and recognizing the factfinder's role in weighing the evidence, determining the credibility of witnesses, and drawing justifiable inferences from the evidence. See, e.g., Lewis v. United States, 767 A.2d 219, 222 (D.C. 2001). At trial, Officer Miller, a police officer who responded to the scene within a minute after an emergency radio call, testified that appellant matched the description given by the police dispatcher and stated, "I did it, I headbutted her." Officer Miller observed the victim, who was placed in an ambulance; she was vomiting bile, had injuries to her lower lip, was crying, and had a shaky voice. Officer Miller testified that the victim said she had been in an altercation with appellant and when pushing began, she grabbed his wrists and he used his head to "headbutt" her, hitting his forehead to her mouth. We can hardly say that this is a case where "there has been no evidence produced from which guilt may reasonably be inferred." Id.
2. Admission of victim's "excited utterance":
"[W]hether a statement constitutes a spontaneous utterance depends upon the particular facts of each case, and its admissibility as such is within the sound discretion of the trial court." Welch v. United States, 689 A.2d 1, 14 (D.C. 1996). "In order to qualify as an excited utterance, a statement must have been made, 1) in response to a startling event which causes the declarant to be in a state of nervous excitement or physical shock, 2) within a reasonably short period of time after the event to ensure that the declarant did not have time to reflect and 3) under circumstances which, in their totality, indicate that the statement was spontaneous and sincere." Malloy v. United States, 797 A.2d 687, 690 (D.C. 2002). Pursuant to these criteria, the trial court did not abuse its discretion in admitting into evidence the victim's statements to the police. See, e.g., Reyes-Contreras v. United States, 719 A.2d 503, 505-06 (D.C. 1998) (admitting as excited utterances statements made by assault victim to police shortly after assault while victim was crying and visibly upset); (Raphael) Smith v. United States, 666 A.2d 1216 (D.C. 1995) (admitting as excited utterances statements made in 911 call to police consisting of a series of questions and answers). Moreover, the Confrontation Clause of the Sixth Amendment does not require the government to prove that a declarant is unavailable before statements can be admitted as excited utterances. Reyes-Contreras, supra, 719 A.2d at 506-07.
3. Exclusion of victim's written statement:
The victim, invoking her Fifth Amendment rights, chose not to take the stand. Therefore, appellant sought leave to admit an unsworn written statement by the victim, *fn1 but was unable to provide to the trial court any basis for doing so in contravention of the rule against hearsay. We review for plain error. See Patton v. United States, 633 A.2d 800, 810 (D.C. 1993) (citation omitted) (burden on party seeking admission to identify appropriate exception to hearsay rule). On appeal, appellant suggests that the statement might be admissible as a prior inconsistent statement, but that is hardly clear from this record. No foundation was laid for its admission, see, e.g., Parker v. United States, 757 A.2d 1280, 1288 (D.C. 2000), and in the absence of a detailed proffer, it is not shown that the statement was necessarily either "prior" to or "inconsistent" with the excited utterance within the meaning of the exception. We can find no plain error here.
The judgment on appeal is accordingly
SCHWELB, Associate Judge, concurring in the judgment:
Given the manner in which this case was presented at trial and the nature of the issues raised on appeal, *fn2 I am compelled to agree that Jones' conviction should be affirmed. Nevertheless, in my opinion, the case is more complex than my colleagues suggest, and it has a troubling flavor of unfairness. The statement by Cheryl Baker that incriminated Jones was admitted into evidence as an "excited utterance" (even though it consisted of answers to questions posed to her by the police), and Jones had no opportunity to cross-examine her. At trial, Ms. Baker was evidently prepared to testify and exonerate Jones, but as a result of the government's apparently routine but practically devastating suggestion that Ms. Baker might incriminate herself by so testifying, Ms. Baker was induced - admittedly on the advice of counsel, and with the ...