Appeals from the Superior Court of the District of Columbia. (F-4075-00 and F-104-00). (Hon. Shellie F. Bowers, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before WASHINGTON, Chief Judge,*fn1 SCHWELB, Associate Judge, and KERN, Senior Judge.
On November 15, 2001, a jury convicted Ronald Randolph and Phillip A. Stewart of first-degree murder while armed,*fn2 kidnapping,*fn3 possession of a firearm during a crime of violence (PFCV),*fn4 and carrying a pistol without a license (CPWOL).*fn5 The case arose from the abduction and subsequent murder of Carlos Thomas on the night of October 19, 1999. On appeal, both defendants contend that the trial judge abused his discretion and committed reversible error by admitting into evidence an out-of-court narrative statement allegedly made by John Holmes. Holmes, who claimed to have been an eyewitness to the kidnapping of the decedent, made this statement to his friend, Edna Sudler, a prosecution witness, shortly after the kidnapping occurred.*fn6
In its initial brief, the government contended that even if Holmes' statement, admitted over objection, was not an excited utterance -- an assumption which the government did not contest -- the convictions should be affirmed because the evidence was admissible as a prior identification or, in the alternative, as a prior consistent statement. We disagree with the government's position regarding either theory of admissibility. We also note that in its original submission, the government made no claim that any error in the admission of Holmes' out-of-court statement was harmless in the traditional sense.*fn7 The government thus initially provided the court with no basis for affirmance other than the "prior identification" or "prior consistent statement" theory.
Following oral argument, however, the court ordered supplemental briefing on an issue not previously addressed by the government, namely, whether the court may or should find the error harmless vis-a-vis either defendant when the government had failed to make such a claim in its brief. Having considered the supplemental submissions in the light of the record as a whole, including the government's initial failure to assert a claim of harmlessness, we now conclude that the trial judge erred in admitting testimony regarding Holmes' out-of-court statement, and that the error was prejudicial as to Randolph but harmless as to Stewart.*fn8 Accordingly, we reverse Randolph's convictions for armed first-degree murder, kidnapping, and PFCV, but affirm his conviction of CPWOL, because that conviction was not affected by the trial court's erroneous ruling. We affirm all of Stewart's convictions.
On the afternoon of October 20, 1999, officers of the Metropolitan Police Department found the body of Carlos Thomas at an abandoned public housing development in southeast Washington, D.C. Thomas had four gunshot wounds to his head, and he had been dead for approximately twenty-four to thirty-six hours. The government's theory of the case was that Thomas was abducted by Stewart and Randolph -- an incident allegedly witnessed by Holmes -- and that the two men murdered Thomas a few hours later. There were no witnesses to the shooting itself.
Holmes was the prosecution's key witness, but his testimony must be placed in the context of the overall investigation. On October 22, 1999, police officers went to the southeast Washington apartment of Patricia Ball and her daughter, Kwatika Johnson. Kwatika was the then-pregnant girlfriend (and later became the wife) of appellant Stewart. Kwatika testified that she had been on the telephone with her friend Tracey Johnson (no relation), when Stewart, armed with a revolver, pointed the weapon at Kwatika's head and stomach and threatened that "I'm going to put three bullets in your head like I did Carlos Bitch Ass," or words to that effect. Stewart, who was intoxicated, apparently threatened Kwatika Johnson and her unborn child because, on account of her pregnancy, Kwatika did not want to have sex with him.
Tracey Johnson, who was called as a witness by Stewart's attorney, and who had no apparent reason to level a false accusation against Stewart, testified that she overheard Stewart's threat and admission, and she reported what she had heard immediately to her grandmother. The two women called the police.*fn10 Police officers responded to Ms. Ball's apartment and arrested Stewart, who was on the premises. Kwatika led them to the .38 caliber revolver which Stewart had pointed at her, and which he had later concealed.
Ballistic tests subsequently established that Carlos Thomas had been shot with the weapon which the officers recovered from Ms. Ball's apartment -- i.e., the revolver which Stewart had allegedly used to threaten Kwatika.*fn11
Later on the evening of October 22, homicide detectives brought Kwatika Johnson to the police station for questioning regarding the murder of Carlos Thomas. Initially, Kwatika did not disclose to the police Stewart's acknowledgment to her that he had shot Carlos, but the detectives had already obtained information to this effect as a result of Tracey Johnson's report. As noted in the government's brief, "Kwatika only told the detectives what Stewart had said about Carlos Thomas when they were about to arrest her as an accessory to murder." According to Kwatika, the police also threatened to take away her children unless she provided the information that they were seeking. Following these pointed police warnings, Kwatika gave the detectives a videotaped statement in which she asserted that while threatening to kill Kwatika, Stewart boasted that he had shot Carlos three times.*fn12 Kwatika
subsequently gave a statement to Stewart's attorneys in which she denied that Stewart had admitted killing Thomas. At trial, however, Kwatika (who had meanwhile been placed in the Witness Protection Program and had received a substantial amount of money from the government) confirmed that Stewart had threatened her and that, at the same time, he had admitted abducting and shooting Carlos.
On or about March 1, 2000, some four months after obtaining Kwatika Johnson's statement, the police located John Holmes, the sole alleged eyewitness to the abduction. Holmes, a heavy drinker, initially told the police that he knew nothing about the death of Carlos Thomas, but he then changed his story, stating that he had witnessed a kidnapping.*fn13
Holmes later testified that he knew Thomas, and that he was also friendly with Stewart and Randolph, each of whom knew him as "Pop" or "Pops."
At trial, Holmes was initially called as a witness for the prosecution. Holmes testified that on the evening of October 19, 1999, he was visiting and drinking with his friend, Edna Sudler. Ms. Sudler asked him to go to Eddie Leonard's Carry-Out to purchase some cigarettes for her. Holmes stated that after he arrived at Eddie Leonard's, he saw Carlos Thomas arrive and order some food. The two men left together. As they emerged from the establishment, a rust-colored car pulled up, and the driver, identified by Holmes as appellant Randolph, stepped out and ordered Thomas to get into the car. According to Holmes, Randolph put his hand near his waist area, as if to draw a weapon, and Thomas got into the vehicle. Seated in the rear of the car was appellant Stewart. The driver then made a U-turn and drove off at a high rate of speed. Holmes testified that he returned to Ms. Sudler's apartment, drank a beer, and went to sleep.*fn14
Edna Sudler, whom Holmes was visiting on the evening of October 19, 1999, was also called to testify on behalf of the prosecution. Ms. Sudler stated that Holmes had consumed a great deal of alcohol and that it did not "take that much for [him] to get drunk." Ms. Sudler further acknowledged that on the evening in question, she had consumed some gin, chased it down with beer, and was "half-drunk" herself. Over a defense hearsay objection which the trial judge overruled, Ms. Sudler described what Holmes had told her after he returned to her apartment from Eddie Leonard's. According to Ms. Sudler, Holmes reported that he had seen and conversed with Carlos Thomas at the carry-out. He related that after the two men had made their purchases, he and Carlos came out together and this car pulled up real fast in front of the carry-out and a guy got out of the car and said Carlos, what's up like that, man. So Carlos said what's up like that with you. So he said come on. We going for a ride. And the dude got out of the car and made Carlos get in.
Ms. Sudler further testified that she asked Mr. Holmes if he knew the men who were responsible for abducting Mr. Thomas. Holmes told her that he had never seen them before but, according to Ms. Sudler, "he was lying." Sustaining a defense objection, the judge ordered stricken Ms. Sudler's comment that Holmes was lying. Ms. Sudler went on to state that she "picked" at Mr. Holmes -- "[i]t's like you trying to get something out of a child and eventually they tell you" -- and that Holmes told her who the men were. The prosecutor did not seek to elicit, and Ms. Sudler did not disclose, the names of the men Holmes had identified.
There were a number of other prosecution witnesses, including, in particular, Kwatika Johnson, who testified as previously noted. Both defendants called witnesses, but neither Stewart nor Randolph took the stand in his own defense. The defendants were subsequently convicted of armed first-degree murder and a number of related offenses. See pp. 1-2, supra.
Each appellant contends on appeal that the judge committed reversible error by admitting, as an excited utterance, Holmes' alleged statements to Ms. Sudler as described in her testimony. The issue comes before us in an unusual posture, for the government does not defend on the merits the trial judge's ruling that Holmes' report to Ms. Sudler was an excited utterance, thereby effectively conceding error. See generally [John L.] Rose v. United States, 629 A.2d 526, 535-38 (D.C. 1993). Although the government has not formally confessed error in this case, and has not asked the court to reverse the defendants' convictions, its numerous concessions on this and other issues come close to inviting reversal. Under the circumstances, we make our own inquiry regarding whether error occurred, for "we cannot . . . quit ourselves of our responsibility to examine the whole record before setting aside a conviction for crime." Parlton v. United States, 64 App. D.C. 169, 170, 75 F.2d 772, 773 (1935).
A. The Hearsay Exception for Excited Utterances
In Nicholson v. United States, 368 A.2d 561, 564 (D.C. 1977), the court stated that the [e]lements necessary to justify the exception to the hearsay rule include (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 circumstances, which in their totality suggest spontaneity and sincerity of the remark. See generally MCCORMICK, EVIDENCE § 297 (2d ed. 1972).
(Emphasis added.) "The ultimate question . . . is whether the statement, as reported at trial, was a spontaneous reaction to the exciting event[,] rather than the result of reflective thought." Lyons v. United States, 622 A.2d 34, 47 (D.C. 1993) (citation and internal quotation marks omitted), vacated on other grounds, 650 A.2d 183 (D.C. 1994) (en banc).
In this case, the appellants argue principally that because, in his statements to Ms. Sudler, Holmes claimed not to know who the kidnappers were, and because he subsequently testified in the prosecution case at trial that the kidnappers were the two appellants, then under the prosecution's own theory, Holmes must have both reflected and lied in the account that he gave to Ms. Sudler. "The fact that the complainant/declarant misrepresented a fact to the police*fn15 during the 911 call was relevant to a determination of whether it was a spontaneous utterance. It bears upon whether the declarant's statement resulted from conscious reflection or the spontaneous reaction to the startling event." [Raphael] Smith v. United States, 666 A.2d 1216, 1225 (D.C. 1995) (citations omitted).
The court in [Raphael] Smith found it unnecessary to decide whether evidence that the declarant fabricated parts of his statement conclusively established as a matter of law that the statement was not an excited utterance. Nevertheless, fabrication presupposes reflection rather than spontaneity and falsity rather than truthfulness. An excited utterance is admitted on the theory that its spontaneity assures its veracity, and fabrication ...