Appeal from the Superior Court of the District of Columbia No. M-11745-99. Honorable Linda Kay Davis, Trial Judge.
The opinion of the court was delivered by: King, Senior Judge
Before TERRY and FARRELL, Associate Judges, and KING, Senior Judge.
Yetta Drayton was charged with attempted possession of a prohibited weapon, simple assault and attempted threats*fn1 arising from a September 23, 1999 altercation between Drayton and her thirteen-year-old son D.D. After a two-day bench trial, Drayton was found guilty of attempted possession of a prohibited weapon and simple assault, but was found not guilty of attempted threats. Drayton's conviction was based almost exclusively on the testimony of two police officers as to the out-of-court statements of D.D. and an unidentified witness. Drayton filed a timely appeal. After briefs were submitted, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), and the parties filed supplemental briefs addressing Crawford's impact on the admissibility of the hearsay testimony at Drayton's trial.
For the reasons set forth below, we hold that the admission of the officers' testimony regarding D.D.'s out-of-court statements violated Drayton's Sixth Amendment rights as defined by Crawford, supra, and that their admission was prejudicial error. We, therefore, reverse the convictions and remand for a new trial.
On September 23, 1999, at 3:22 p.m., Metropolitan Police Department Officer Robert McCollum responded to a radio call reporting an assault in progress outside 1227 M Street, N.E. When he arrived at the scene approximately three minutes later, Officer McCollum saw Drayton, who matched the dispatcher's reported description of a "black female, red and black hair, black jeans, woman with a knife." Officer McCollum told Drayton to drop the knife and approach him, and she complied. McCollum testified that Drayton was "irate," "flapping her arms, talking real loud profanely," and that he smelled alcohol on her breath. At that point, Officer McCollum placed her in handcuffs and put her in his patrol car. After conversing with Drayton regarding what had occurred, Officer McCollum crossed the street to speak with some of the bystanders.*fn2
Officer Albert Williams responded to the same radio call and arrived on the scene as Officer McCollum was confronting Drayton. Officer Williams described Drayton as "belligerent" and "[i]ntoxicated, very irate, cussing, upset, going off." Officer McCollum testified that Officer Williams arrived around the time that Officer McCollum was placing Drayton in the patrol car, and Officer Williams stated, "[W]e were trying to find out what was going on. It was kind of chaotic at the time. . . . Basically, I talked to witnesses to find out what was going on." Several unidentified witnesses then called to Officer Williams, yelling , "There she is. You need to get her," and "She had a knife. She's the one right there."*fn3 Officer Williams was allowed to testify, over defense's objection, that he then spoke with an unidentified female witness, and that the witness told him that Drayton "pulled a knife on her little boy, you need to get her." The witness was never identified nor called to testify, and the officer's testimony was admitted under the "excited utterance" exception to the hearsay rule.
Approximately five to ten minutes after Officer Williams spoke with the unidentified female witness and fifteen to twenty minutes after Officer McCollum arrived on the scene, complaining witness D.D., Drayton's son, returned and spoke with the officers. D.D. was "crying, very upset, very emotional, in a daze, stuttering." Officer McCollum testified that D.D. told him that D.D. and his mother "had got into an argument over some money he was supposed to have gave to her. Apparently he didn't give it to her and they got into an argument and she punched him in the face, and somehow they got into a scuffle. At that time, she produced a knife and stated 'I'm going to stab you motherfucker if you don't give me my motherfucking money.'" Officer McCollum testified that D.D. stated that "his mother had pulled a knife on him, and wanted him to give her some money, and thought that he had had some money of hers." Both statements were admitted, over defense counsel's objections, as excited utterances.
D.D. did not testify; however, he did complete a signed statement which defense counsel introduced into evidence through the testimony of Robert Ames, an attorney for the Public Defender Service. The statement was witnessed by Ames while Drayton sat just outside the room where the statement was given. Ames testified that D.D. wrote in the statement that he had lied to the police on the day in question because he was angry with his mother for refusing to take him shopping for clothing. According to D.D.'s statement, Drayton never pulled out a knife or threatened D.D. with a knife.
Drayton testified that D.D. was angry with her because she would not take him shopping for clothes. She explained that she had a few drinks with her lunch, and that she had eaten an apple, which was why she was carrying a knife at the time of the incident. According to Drayton, she and D.D. had a minor physical altercation, during which she removed the knife from her pocket after it cut her through her jeans, throwing the knife to the ground. She denied ever brandishing the knife, or threatening her son with it. The trial court found Officers McCollum and Williams to be credible, basing its verdict entirely on their testimony regarding D.D.'s out-of-court statements. The trial court specifically discredited Drayton's testimony and D.D.'s written statement, noting that Drayton was in the next room when the statement was taken, and that the statement "tracks the testimony" of Drayton. The trial court subsequently found Drayton guilty of simple assault and attempted possession of a prohibited weapon, sentencing her to 120 days' incarceration on each count, to be served concurrently, and two years' probation. This appeal followed.
We must first consider what standard of review governs in these circumstances. Constitutional claims preserved on appeal by objection below are subject to review under the "harmless beyond a reasonable doubt" standard articulated in Chapman v. California, 386 U.S. 18, 24 (1967). Arguments raised for the first time on appeal, however, are reviewed for plain error. Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc). To survive a "plain error" review, appellants must show "(1) error, (2) that is plain, and (3) that affect[s] substantial rights." Johnson v. United States, 520 U.S. 461, 466-67 (1997). Where the three conditions are met, the court "may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. Additionally, "where the law at the time of appeal was settled and clearly contrary to the law at the time of appeal," as is the case in the instant appeal, "it is enough that an error be 'plain' at the time of appellate consideration." Id. at 468.
Drayton claims that defense counsel's objections below were sufficient to preserve her Confrontation Clause claim for "harmless error" review.*fn4 The government argues that Drayton's objections were insufficient to preserve her claim, and thus her claim must be reviewed for plain error. However, the government concedes, if we conclude that the statements at issue are "testimonial" under Crawford, that their admission without the opportunity for cross-examination would constitute prejudicial error as "the trial court based its verdict entirely on the officers' testimony concerning D.D.'s out-of-court statements."*fn5 Such an error clearly would not only affect substantial rights but would seriously affect the fairness and integrity of the proceedings. Because we conclude that the ...