Appeal from the Superior Court of the District of Columbia (M11520-02). (Hon. Mildred M. Edwards, Trial Judge).
Before Schwelb and Reid, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Schwelb, Associate Judge
On January 6, 2003, following a bench trial, Albert D. Stancil was convicted of two counts of assault upon his wife, Roslyn Stancil,*fn1 and one count of possession of a prohibited weapon (knife) (PPW (b)).*fn2 The prosecution's evidence against Stancil consisted solely of the testimony of a Metropolitan Police Department officer, Shauntelle Anderson, who appeared at the Stancils' home in response to a 911 call. At Stancil's trial, Officer Anderson related, inter alia, certain statements that Mrs. Stancil made to the police shortly after they arrived at the scene of a domestic dispute that had turned violent.*fn3 Over defense objection, the trial judge admitted the out-of-court statements of Mrs. Stancil under the "excited utterance" exception to the hearsay rule. Stancil argued to the court, through counsel, that his wife "should be here today to testify to this."*fn4 The trial judge disagreed;*fn5 she admitted Officer Anderson's testimony regarding what Mrs. Stancil had told the police, and she found Stancil guilty as noted above.*fn6
On appeal, Stancil, supported by the Public Defender Service (PDS) as amicus curiae, relies on Crawford (which was decided fourteen months after his trial) and contends that he has been denied his right to confront the witnesses against him, in violation of the Sixth Amendment. He claims that Mrs. Stancil's out-of-court statements were "testimonial" as that term is used in Crawford, and that their admission, without a prior opportunity for cross-examination, therefore contravened the Confrontation Clause. The government responds that the point has not been preserved and that, in any event, the statements at issue were not testimonial.
For reasons set forth below, we are of the opinion that Stancil's Sixth Amendment claim was adequately preserved. We further conclude that while Mia's request to her father to stop hurting her mother was non-testimonial, and was properly admitted into evidence, there is reason to believe that some, if not all, of Mrs. Stancil's out-of-court statements were testimonial. See Part II.E., infra. In part because the parties at the time of the trial were not addressing the issues subsequently identified in Crawford, however, the record is unclear as to which, if any, statements were testimonial, and as to whether the evidence not excludable on the basis of the Confrontation Clause was sufficient to render the admission of any testimonial statements harmless beyond a reasonable doubt. Accordingly, we remand the record to the trial court for further proceedings consistent with this opinion.
I. THE TRIAL COURT PROCEEDINGS
The significant constitutional issues raised in this appeal were generated by a disagreement between two parents regarding their children's diet. It is undisputed that on the afternoon of October 23, 2002, Stancil and his three children were at the home of his mother, who had been caring for them while their parents were at work. The children said that they were hungry, and Mr. Stancil gave them some alleged "junk food" to eat.*fn7 The children apparently told their mother about the food that their father had given to them, and Mrs. Stancil emphatically expressed her displeasure. She and her husband began to argue, the dispute degenerated into violence, and there was enough of a commotion to cause someone (whose identity is not disclosed by the record) to call 911.
Officer Anderson testified that on the afternoon in question, she received a radio run "to investigate trouble" at an address on 16th Street, N.W., which was the home of Stancil's mother. She and two other officers responded to that address, and they heard "yelling and screaming coming from inside the premises." The officers knocked on the door, the door "came open," and Officer Anderson observed a frightening scene:
The complaining witness was standing with her children and the defendant's mother to the right and [Mia] the oldest daughter of the defendant and complaining witness was screaming with a knife in her hand pointing it at the defendant stating stop hurting my mommy, stop hurting my mommy, I'm not going to let you hurt mommy any more.
At that time, Mr. and Mrs. Stancil were standing only six or seven feet apart, with Mia between them. Officer Anderson told Mia to "please drop the knife, little girl." Mia complied and promptly burst into tears. Officer Anderson observed that Mrs. Stancil had a slight swelling "right around the eye socket."*fn8
With the knife safely out of Mia's hands, the officers "got all the parties involved separated and calmed down." Immediately after the scene had been secured -- "within a minute['s] time" after the police arrived -- Officer Anderson was able to speak to Mrs. Stancil (to whom she repeatedly referred as the "complaining witness"), and to "interview" several of the persons present, one by one, beginning with Mrs. Stancil.
According to Officer Anderson, after [Mrs. Stancil] informed me that they got into the argument over the junk food, that the defendant then hit her with a closed fist in her head. She stumbled back, he then proceeded to push her and when he pushed her she fell down on the ground. While she was on the ground the defendant began to kick her, hitting at her with his feet and his fist. The defendant then, I mean, the complaining witness started to scoot away from him as he continued to strike her while she was on the ground. The defendant's mother came between them [and] tried to separate them. At this point the complaining witness was briefly allowed to escape [the defendant's] blows that he was providing to her. The defendant then went into the kitchen drawer, retrieved a steak knife and proceeded to chase the complaining witness around the house with it.
Mrs. Stancil further told Officer Anderson that as her husband was chasing her, she picked up a pot in order to stop him from trying to stab her with the knife.*fn9
Stancil took the witness stand in his own defense. He testified that while he and his wife were arguing about the food that he had given to the children, Mrs. Stancil threatened to "get a knife, that she was going to stab me." He claimed that his wife had previously stabbed him a few years earlier, and that he was therefore concerned about her threats. As Mrs. Stancil was retrieving the knife from the drawer, Mr. Stancil pushed her away, and she fell to the ground. Mrs. Stancil still had the knife, so Mr. Stancil "took the knife from her . . .
[a]nd it just, it went on from there." Stancil claimed that he "really [didn't] remember my daughter holding a knife to me," nor did he recall the officers telling Mia to drop the knife. He insisted that he and his wife "were both coming at each other" and "travelling throughout the house," but he denied that he chased his wife with the knife, or, indeed, at all.*fn10
In closing argument, the prosecutor emphasized the significance of the remark made by Mia upon the arrival of the police:
Your Honor, what could be more dramatic than a seven-year-old girl being forced to defend her mother by standing in between her mother and father holding a knife saying leave my mommy alone, you're not going to hurt my mommy anymore.
The trial judge agreed, and she found it impossible for me to believe a father could be in a situation where his seven-year-old daughter is holding a knife and saying don't hurt mommy any more and have uniform[ed] police officers come into the house, and order that child to drop that knife, not to be able to remember that. He can't remember if he chased her. He doesn't know how she got the bruise on her face, and that's objective observed evidence by the police officer who has no reason to lie about the facts, that Ms. Stancil had a bruise on her face. [I]sn't the likely scenario here if we fill in the gaps left out by Mr. Stancil just as the complainant describes it in her excited utterance to the police?
Telling Stancil that "I just don't believe you," and crediting Mrs. Stancil's statement to the police (which the judge had previously admitted as an "excited utterance"),*fn11 the judge found Stancil guilty of the three counts that remained. This appeal followed.
A. Preservation of the Claim
The government asserts that Stancil did not preserve in the trial court his claim under the Confrontation Clause, and that our review should therefore be for plain error. We do not agree.
The question whether the admission of Officer Anderson's recitation of the out-of-court statements by Roslyn and Mia Stancil violated the defendant's rights under the Sixth Amendment was raised at least implicitly by Stancil's attorney, and the trial judge explicitly recognized that the issue was before her. As we have noted, defense counsel argued to the judge that Roslyn Stancil "should be here today to testify." While counsel did not specifically state that Mrs. Stancil should be present in person so that Stancil could confront and cross-examine her, it is difficult to imagine for what other purpose Stancil could have sought her presence.*fn12 The trial judge made it clear that she was fully aware of the constitutional issues which are presented when the prosecution bases its case largely on the hearsay statements by persons who have not been called to testify. In the judge's words, "the Sixth Amendment['s] Confrontation Clause is implicated whenever an out-of-court statement comes in by somebody who is not sitting on the witness stand."
"The purpose of requiring a specific objection is to enable the prosecution to respond to any contentions raised and to make it possible for the trial judge to correct the situation without jettisoning the trial." Hunter, 606 A.2d at 144; see also Adams v. United States, 302 A.2d 232, 234 (D.C. 1973). In this case, the trial judge was fully apprised of the constitutional issue before her, and she at least implicitly decided it. If the judge had believed that the Confrontation Clause had been violated (an issue that she explicitly identified), she would have excluded the challenged testimony. Under these circumstances, the rationale for treating the constitutional issue as having been waived, or for requiring Stancil to show plain error, has no application. In this case, as in Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002), the appellant "benefits from the supervision of the trial by an attentive trial judge," who recognized the existence of a significant issue, here the applicability of the Confrontation Clause.
It is true, of course, that Stancil's attorney did not urge upon the trial judge the distinction between "testimonial" and "non-testimonial" out-of-court statements articulated in Crawford, nor did he assert that Ohio v. Roberts, 448 U.S. 56 (1980), partially overruled by Crawford, was incorrectly decided. But "[o]nce a . . . claim is properly presented [to the trial court], a party can make any argument [in the appellate court] in support of that claim; parties are not limited to the precise arguments made below." West v. United States, 710 A.2d 866, 868 n.3 (D.C. 1998) (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)). This is especially true where, as here, the new arguments presented on appeal by Stancil and by PDS were generated by a change in the law, and were not available to Stancil at trial.
Accordingly, we hold that Stancil's claim of a Confrontation Clause violation was preserved, and ...