Appeal from the Superior Court of the District of Columbia (F-1887-03) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Pryor, Senior Judge
Before RUIZ and KRAMER, Associate Judges, and PRYOR, Senior Judge.
A grand jury indicted appellant, Victor Teasley, on one count of armed carjacking, in violation of D.C. Code § 22-2803 (b); two counts of possession of a firearm during a crime of violence or dangerous offense, in violation of D.C. Code § 22-4504 (b); one count of armed robbery, in violation of D.C. Code §§ 22-2801, -4502; one count of first degree theft, in violation of D.C. Code §§ 22-3211, -3212; and one count of unauthorized use of a motor vehicle, in violation of D.C. Code § 22-3215. Following a trial, a jury convicted appellant of first-degree theft and acquitted him of all other charges. He appeals his conviction and contends the trial court committed reversible error when it admitted, as excited utterances, hearsay statements made by the complaining witness during two telephone conversations. Finding no error, we affirm.
At some time between 4:00 and 4:30 p.m. on March 31, 2003, the complaining witness, Richard Killett, was on his way to pick up his children at their grandmother's house. As he drove his sports utility vehicle on Chillum Place, in the District of Columbia, he saw appellant. Recognizing appellant as the younger brother of an old friend, complainant stopped his vehicle and started a conversation. Appellant asked complainant for a ride "around the corner." Appellant then asked the complainant to pull the vehicle over. When complainant complied with this request, appellant produced a chrome-colored handgun and pointed it at the complaining witness. Employing profanity, appellant ordered the complaining witness out of the vehicle. Before complainant exited the vehicle, appellant took cash from his wallet and threw the wallet at complainant.
Appellant drove off in the direction of Fort Totten, leaving complainant stranded on the street. The complainant immediately dialed 911 on his cellular phone and described the incident to the police operator. After he hung up, he called his children's grandmother, and informed her that he could not pick up the children as planned, because his car had been forcibly taken from him.
At approximately 4:30 p.m., District of Columbia Metropolitan Police Department ("MPD") officers received a radio communication concerning the carjacking. The broadcast to police officers described the stolen vehicle and provided its license plate number. An officer observed the stolen vehicle in front of a fast-food restaurant and followed it in his own vehicle. When the suspect drove the vehicle onto a median, the officer activated his vehicle's lights and siren. The driver of the suspect vehicle pulled over and remained inside the vehicle. A passenger exited the vehicle and fled on foot. MPD officers later found the passenger hiding inside of a garbage receptacle and arrested him. When asked his name, the passenger responded, "Fahem Robinson." However, he was later identified as appellant, Victor Teasley. During a "show-up" identification, the complaining witness identified appellant as the man who accosted him and took his money and vehicle. The police did not recover a gun, either from appellant's person or from the area in which the chase ensued.
In this appeal, appellant's arguments are focused upon the trial judge's decision to admit the contents of the telephone calls the complaining witness made shortly after the encounter involving the two men. The government filed a motion in limine to admit statements made by the complainant shortly after the incident. At a pretrial hearing, the government offered an audiotape recording of the complainant's call to the 911 dispatcher. The complainant informed the police operator that he had been carjacked at gunpoint, and that the perpetrator drove away toward Fort Totten. He exclaimed, "I think I know the guy who did it." When the operator inquired regarding complainant's location at the time of the incident, he replied, "In the car. I was talking to the guy." He explained, "I knew him . . . he was an old friend of mine and he just told me 'get out,' and he took my car." The complainant identified the perpetrator only as "Victor," stating that he did not know Victor's last name. He stated that he did not know where Victor lived. At one point, he muttered, apparently to himself, "I know I shouldn't have did that." He also provided a description of the car to the dispatcher. When initially attempting to recite the license plate number, he faltered. Eventually, he provided the operator with a license number. At the end of the conversation, the operator asked the complaining witness if he was injured. He replied, "Nah. Just scared as hell."
After listening to the tape, the judge ruled that complainant's statements were admissible as excited utterances. The judge noted, "[N]ot only does [Complainant] talk in excited tone [sic], but you hear him mumbling to himself. He is asked a question about what his tag number is, and he doesn't have the wherewithal at the moment to get the tag number, and he has to look through something to give the tag number. He is not immediately responsive to the questions that are asked, and I believe that's based on his agitated state." When defense counsel objected to the court's findings, the judge -- after some further discussion with counsel -- adhered to her ruling.
At a second pretrial hearing, the trial judge considered the admissibility of the contents of the complainant's call to his children's grandmother, Subelyer Jenkins.*fn1 Ms. Jenkins related that, on the afternoon of March 31, 2003, she was in her kitchen cooking, when she received the complainant's call. At that time, she was expecting him to arrive at her house and pick up his children. He informed Ms. Jenkins that he could not pick up the children, because he had been carjacked. According to Ms. Jenkins, he stated "that he was giving a guy a ride and, and he said he knew the guy . . . and he said that he pointed a gun at him and told him to get out of his own [damn] car." Ms. Jenkins testified that the complainant "sounded excited" and spoke "very fast." His use of profanity surprised Ms. Jenkins, because he normally avoided the use of such language when speaking to her. Ms. Jenkins admitted that she was uncertain about the exact time at which complainant called. However, she maintained that she knew it was after 4:00 p.m., because she normally watched certain television shows around that time.
Over objection, the judge also ruled that complainant's statements to Ms. Jenkins were admissible as excited utterances. The judge stated that she was "satisfied that [complainant's statements] had the indicia of reliability" necessary to qualify them as excited utterances because complainant "used profanity, when he does not ordinarily use that," and Ms. Jenkins contended that he spoke quickly and "described his tone ...