Appeal from the Superior Court of the District of Columbia (F-5852-02) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB, RUIZ, and GLICKMAN, Associate Judges.
On December 18, 2002, a jury found Yusef K. Odemns guilty of armed robbery, in violation of D.C. Code § 22-2801 (2001), and of several related weapons offenses. On March 6, 2003, Odemns was sentenced to imprisonment for an aggregate term of forty-seven years.
On appeal, Odemns contends that the trial judge erred by admitting into evidence, as a spontaneous exclamation or excited utterance, a police detective's testimony regarding an out-of-court statement made to the detective, in response to his questions, by the victim of a different armed robbery committed by Odemns nine days after the charged offense.
Odemns claims that the admission of this testimony contravened the hearsay rule, deprived him of rights protected by the Confrontation Clause of the Sixth Amendment, and violated the "other crimes" doctrine of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and its progeny. The government responds that the detective's hearsay evidence was properly admitted under the excited utterance exception; that Odemns did not preserve his Confrontation Clause rights and has not shown that the judge committed plain error; and that the challenged evidence was admissible under the "identity" exception to the rule of Drew. We conclude that the trial judge abused his discretion by admitting the detective's testimony as an excited utterance or spontaneous exclamation, and we therefore reverse Odemns' conviction without reaching his Confrontation Clause and Drew claims.
A. The Capitol Hill Robbery
At the time of the robbery that led to Odemns' prosecution, Young Chun Ahn and his family owned and operated the Capitol Hill Valet Cleaners, a dry-cleaning establishment located at 409 East Capitol Street in southeast Washington. On the afternoon of March 18, 2002, Mr. Ahn was working near the back of the store while his nine-year-old daughter, Stella, was doing her homework in the front of the establishment.*fn1 At about 3:45 p.m., a clean-shaven black man, who stood approximately 5'8" in height, and who appeared to be about twenty years old, came into the premises through the front door. According to Mr. Ahn, the man was wearing a gray sweatsuit jacket with the hood over his head. He was also wearing dark gloves. Believing that the man, a stranger to Mr. Ahn, might be a customer, Mr. Ahn went to the front of the store. The putative customer, however, turned out to be an armed robber. The man walked around the counter, pointed a black handgun at Mr. Ahn, and demanded money.
Thinking first of his daughter's safety, Mr. Ahn hid Stella behind him. He then opened the cash register and gave the robber its contents, a total of between $200 and $250. Evidently unsatisfied with his haul, the robber demanded more money, but Mr. Ahn replied that he did not have any more. The robber next ordered Mr. Ahn to give him a telephone, and Mr. Ahn handed him the store's cordless phone. The robber extracted the battery from the telephone and left the store with the battery and the stolen cash. Although Mr. Ahn attempted to call 911 and began to chase the robber, the man made his escape.
On April 9, 2002, some three weeks after the robbery, Detective Raymond Stargel of the Metropolitan Police Department (MPD) showed an array containing several photographs to Mr. Ahn and then to Stella. Mr. Ahn and his daughter both positively identified a photograph of appellant Odemns as the man who had robbed Capitol Hill Valet Cleaners on March 18. At trial, Mr. Ahn again positively identified Odemns as the robber. Stella testified at trial, however, that she did not see the robber in the courtroom.
B. The Georgetown robbery.
Detective Robert Thompson of the MPD testified at the trial regarding his investigation of an armed robbery of the Georgetown Valet Cleaners, which occurred at about 5:00 p.m., on March 27, 2002, at 1655 Q Street, N.W. in Washington, D.C., and which led to Odemns' arrest. Thompson explained that on that date, he was responding to a radio dispatch informing him of the robbery when he learned that a suspect was being pursued in or near the 1300 block of Riggs Street, N.W. Upon arriving at the scene of the chase, Detective Thompson observed other officers apprehending Odemns, who had been hiding behind some garbage cans. At the time he was captured, Odemns was wearing a gray, longsleeved, hooded sweatshirt. As he emerged from his hiding place, Odemns told the officers that, "[y]ou got me. How much did . . . she say I got? The bitch probably said I took more."
Detective Thompson testified that Odemns was apprehended within minutes of the reported robbery. The police found latex gloves and two rolls of pennies in one of the garbage cans behind which Odemns had been hiding. Across from Odemns' hiding place in a narrow alley, concealed behind the tire of a car, the police found a black semi-automatic Beretta handgun loaded with twelve rounds of ammunition. The Beretta was on top of a pile of cash.
Following Odemns' detention, Detective Thompson proceeded to the establishment that had been robbed, arriving there at about 6:00 p.m. He spoke with the store clerk, a woman of Asian descent. According to Thompson, the woman appeared "excited," "upset," "shaken," and "afraid." In response to Detective Thompson's questions, which consisted primarily of an inquiry regarding what happened, the clerk stated that she had been in the store alone when a man came in, displayed a handgun, and demanded money. The clerk told Detective Thompson that the man walked behind the counter to a cash register and ordered her to open it. Complying at gunpoint with the robber's commands, the clerk opened the cash register and gave the robber the money that was inside. The woman told the detective that the robber ordered her to open two additional cash registers. The clerk did so, but one register was empty and the other may have contained only a roll of coins.*fn2
Detective Thompson further related that, according to the clerk, the robber next demanded that she give him a telephone. The clerk told Detective Thompson that she gave the man the "head portion" (presumably the receiver) of a cordless phone. The robber left the store with the money from the first cash register, a roll of coins, a videotape, and the head portion of the telephone. Thompson testified that the clerk described the robber as a dark-complected black man in his twenties. The clerk told the detective that the man wore a gray hooded sweatshirt and gloves "described as the same type of gloves that doctors wear." Detective Thompson testified that the handgun recovered by the police when Odemns was apprehended was similar to the 9-millimeter Glock handguns carried by MPD officers. Mr. Ahn testified at trial that the weapon that the police recovered from the alley on March 27, when Odemns was arrested, looked like the handgun that the robber had used at Mr. Ahn's store on March 18.*fn3
The defense presented no evidence. The jury found Odemns guilty as charged.
Odemns contends, inter alia, that Detective Thompson's testimony regarding the account of the March 27 robbery provided to the detective by the clerk at the Georgetown Valley Cleaners was inadmissible hearsay evidence. More specifically, he claims that the prosecution failed to establish that the hearsay exception for spontaneous exclamations or excited utterances was applicable to the clerk's out-of-court responses to the detective's questions. We agree with Odemns' position.
Detective Thompson testified that the robbery at the Georgetown establishment took place at 5:00 p.m. on March 27, 2002, and that he arrived at the store at "approximately 6:00, almost 6:00." The time that elapsed between the robbery and the detective's interview of the clerk was thus approximately one hour. Thompson testified that he asked the clerk questions because "I had to find out what happened," and that the clerk was "able to respond." The clerk's statement thus consisted of answers to the detective's questions, posed about an hour after the robbery.
The only testimony adduced by the prosecution regarding the declarant's mental state at the time that she gave her account was the following:
Q: When you first met with the complainant can you describe for us the complainant's demeanor and how ...