Appeal from the Superior Court of the District of Columbia (M-6083-02) (Hon. Mildred M. Edwards, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before WAGNER, STEADMAN, and TERRY, Senior Judges.*fn1
After a non-jury trial, appellant was convicted of assault. With support from amicus curiae, the Public Defender Service, appellant seeks reversal based on, inter alia, the decision of the Supreme in Crawford v. Washington, 541 U.S. 36 (2004). Specifically, 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. Thus, on appeal, he claims that the trial court erred in admitting the victim's statements as excited utterances. He also contends that the evidence was insufficient to permit the court, as trier of fact, to find that he committed the assault. We affirm.
At approximately 11:00 a.m. on June 10, 2002, Metropolitan Police Officer James Conway responded to a 911 call reporting that a man was assaulting a woman in a red car with temporary tags at 604 Kenyon Street, N.W. Officer Conway arrived at that address within minutes after receiving the radio broadcast of the 911 call. As he approached, he saw appellant walking away from a red Nissan. The officer also noticed that Sheila Coleman, who was seated in the front seat of the Nissan, had "a large amount of blood on her shirt" and "was bleeding from the head and face area" as the result of "multiple lacerations." He described Ms. Coleman as "excited," "crying," "agitated," "very emotional," and "very, very upset."
At trial, when asked by the prosecutor whether he spoke to Ms. Coleman, Officer Conway stated, "I did. I asked her if she needed medical attention. She said she did. I asked the dispatcher to send an ambulance to the scene. Then I asked her . . . what had happened, and who had done this to her." Later in his testimony, Officer Conway elaborated on his initial interaction with Ms. Coleman:
[T]he first thing she kept saying, even before I could get [sic], if she needed help or not, she kept saying, he was trying to kill me. . . . She repeated it twice at that time. And I was like, you know, I said, who was trying to kill you, and she pointed to the defendant. She didn't give his name or anything at that time. And that's when I went into, well, you know, ma'am, do you need medical attention? . . .
[S]he never said yes, but she, you know, she was sobbing, and she shook her head up and down at that time.
Officer Conway next asked Ms. Coleman, "What did he do?", and she replied, "He choked me, he kicked me, he hit me with his hand . . . and he just kept trying to kill me." When the officer then asked, "How did you get cut on your head?", Ms. Coleman responded, "He just picked me up by my shoulders and was . . . hitting me into the ground."
Meanwhile, Officer Donald Harris arrived on the scene and proceeded to interview appellant, who was sitting nearby on the curb. Appellant admitted to Officer Harris that he had slapped Ms. Coleman and knocked a "stem pipe" out of her mouth. He also stated that Ms. Coleman received her injuries by tripping over a cable in the parking lot while running away from him.
After his initial questioning, Officer Conway asked Ms. Coleman to step out of the car; she did so, and then sat down on the curb. Trying to calm her down, Officer Conway questioned her to "find out exactly where this happened, and . . . the whole situation as to . . . what happened before the assault, how did the assault occur . . . ." Ms. Coleman replied that the altercation began in a nearby alley and that she and appellant continued to argue when they returned to the car. While describing the incident, Ms. Coleman continued to repeat, "He was just trying to kill me."
Ms. Coleman did not testify at trial, but the government introduced her statements at the scene through the testimony of Officer Conway. When the officer began to recount the statements Ms. Coleman made to him while she was still seated in the car, defense counsel objected on the ground that the statements were inadmissible hearsay. Counsel subsequently renewed his objection, arguing further (1) that the statements Ms. Coleman made after she got out of the car were not excited utterances, and (2) that the admission of her statements violated the Confrontation Clause of the Sixth Amendment. The court ruled that all of the statements were admissible as excited utterances, and that no Confrontation Clause violation was apparent.
Relying on the testimony of the police officers and seven photographs of Ms. Coleman's injuries, the court found appellant guilty of assault. It specifically credited Ms. Coleman's first words to Officer Conway (while she was still seated in the car) as strong evidence that she had been assaulted, and found appellant's version of events not to be credible. A few weeks later, the court imposed a sentence of 180 days' incarceration, suspended its execution, and placed appellant on probation for two years.
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. 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 allow further briefing on the impact of the Davis decision and other "recent ...