Appeal from the Superior Court of the District of Columbia (M-8028-02) (Hon. Lynn C. Leibovitz, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before WASHINGTON, Chief Judge, and WAGNER and TERRY, Senior Judges.*fn1
This is an appeal from a conviction of assault. Appellant Long, with support from amicus curiae, the Public Defender Service, seeks reversal based on, inter alia, the recent Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004). Appellant and amicus contend that certain out-of-court hearsay statements that were admitted into evidence at trial violated the Confrontation Clause as interpreted by the Court in Crawford. Appellant also contends that the evidence presented was insufficient to support her conviction, that the government failed to prove that the offense took place in the District of Columbia, and that the trial court improperly questioned witnesses. We affirm.
On July 26, 2002, at approximately 1:00 p.m., Officer Christopher James was driving in a marked police cruiser when a man on the sidewalk flagged him down.
This man, later identified as Jeffrey Dunn, was bleeding from a laceration on his face that stretched from his forehead to his chin and was about a quarter-inch wide. Mr. Dunn, who was "covered in blood" despite having a towel in his hand to help stop the bleeding, was extremely upset and "hyper." Officer James asked, "What happened?" and "Who did this to you?" Mr. Dunn did not respond directly, but instead paced up and down the sidewalk while emphatically repeating, "Look what she did to my face." Officer James called for a paramedic unit and for backup assistance. Officer Reuben Jefferson responded to the backup request within a minute, and the paramedics arrived shortly thereafter. Upon Officer Jefferson's arrival, Mr. Dunn said, "Look what the bitch done, she cut my face."
An ambulance arrived very soon thereafter. Mr. Dunn sat in it for a few moments while the paramedics tried to convince him to go to the hospital for treatment, but he refused to go. After getting out of the ambulance, Mr. Dunn saw appellant coming out of a nearby alley and exclaimed, "There she is!" He then said something to appellant which the officers could not hear, to which appellant replied, "You hit me in my stomach, you beat me, you slashed my tires. I'm tired of you beating me." Mr. Dunn and appellant then began to argue, and Officer Jefferson separated them. Appellant had no visible injuries.
The next day appellant was charged with one count of assault*fn2 and one count of attempted possession of a prohibited weapon.*fn3 A few months later, the case came before the court for a non-jury trial. Mr. Dunn did not testify at the trial, so the government, through the testimony of police officers, introduced the three statements that he had made at the scene. The first was Dunn's "Look what she did to my face" statement to Officer James, which he had repeated three times. The court admitted that statement over appellant's objection on hearsay grounds as an excited utterance. The second statement was Dunn's "Look what the bitch done, she cut my face," which Officer Jefferson heard. This was also admitted as an excited utterance, again over appellant's hearsay objection.*fn4 The third statement was Mr. Dunn's exclamation "There she is!" which was admitted without objection.
Appellant testified that she did not intend to cut Mr. Dunn, but had merely swung at him with her fist in self-defense. At the end of the trial, the court found appellant guilty of assault but acquitted her of the weapon charge.
Appellant filed a timely notice of appeal. After the briefs were filed, the case was submitted without argument. Shortly thereafter, however, the Supreme Court of the United States issued its decision in Crawford v. Washington, 541 U.S. 36 (2004). Appellant filed a motion to allow supplemental briefing in light of Crawford, which we granted without opposition. Appellant, appellee, and amicus Public Defender Service filed briefs discussing the issues raised by Crawford, and the court in due course heard oral argument. Thereafter, while the case was still pending, the Supreme Court decided Davis v. Washington, 126 S.Ct. 2266 (2006), in which it amplified its earlier holding in Crawford. At the parties' request, the court agreed to further briefing on the impact of the Davis decision and other "recent decisions of this court," particularly Thomas v. United States, 914 A.2d 1 (D.C. 2006). The last of these additional supplemental briefs were filed in August 2007, and this appeal is now ready for decision.
Appellant's main contention is that her conviction should be reversed because the admission of Mr. Dunn's three statements in evidence violated her rights under the Confrontation Clause of the Sixth Amendment. Although appellant did object to two of these statements as hearsay, she did not object on Confrontation Clause grounds to the admission of any of the three; consequently, we may consider her present contention only as a claim of plain error. See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006). "[B]efore an appellate court can correct an error not raised at trial, there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affects substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-467 (1997) (citation omitted). Johnson also tells us that "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal - it is enough that an error be 'plain' at the time of appellate consideration." Id. at 468. Accordingly, we must review the trial court's admission of Mr. Dunn's hearsay statements for plain error under the new interpretation of the Confrontation Clause articulated for the first time in Crawford.
When an error is "plain" as that term is used by the Supreme Court, in order to merit reversal, it not only must affect "substantial rights," but also must "seriously [affect] the fairness, integrity, or public reputation of judicial proceedings." Johnson, 520 U.S. at 467 (quoting United States v. Olano, 507 U.S. 725, 731-732 (1993)). In this case, it is by no means clear that the alleged error fits within that class of cases in which substantial rights are affected. Even if the two hearsay statements to which appellant objected had not been admitted at trial, Dunn's third statement, "There she is," referring to appellant when she appeared on the scene, would have been admitted. Further, appellant's own statements as heard by the police officers, which appear to explain her motive for the assault, would also have been admitted. Additionally significant is the fact that appellant chose to testify in her own behalf, acknowledging that she had assaulted Mr. Dunn but claiming that she had done so in self-defense.
Nevertheless, appellant argues that her substantial rights were implicated and that the fairness of judicial proceedings was affected because the admission of Dunn's statements prejudicially affected the outcome of the trial. For this proposition she relies on Harrison v. United States, 392 U.S. 219 (1968), asserting that the alleged error was not harmless because the admission of Dunn's statements forced her to testify, thereby tainting her testimony. Harrison does not support her argument. In Harrison the Supreme Court held that if a defendant decided to testify in order to overcome "the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the ...