Appeal from the Superior Court of the District of Columbia Criminal Division ( F-1343-04) (Hon. Hiram E. Puig-Lugo, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID, GLICKMAN, and THOMPSON, Associate Judges.
Appellant Clyde Simmons was convicted of aggravated assault while armed, among other offenses, for shooting Edward Seymour. The identity of the shooter was the central disputed issue at trial; to prove it was appellant, the prosecution relied on circumstantial evidence. Appellant attempted to introduce, as an excited utterance, a putative eyewitness's hearsay statement identifying someone else as the shooter. The trial judge found the proffered hearsay admissible as an excited utterance but, nonetheless, excluded it because the declarant was unavailable to be cross-examined. Appellant contends this exclusionary ruling was erroneous and entitles him to a new trial. We agree, subject to confirmation on remand that appellant's proffer accurately described the hearsay statement in question.
Edward Seymour testified at trial that appellant owed him $1,500 -- money he had given appellant for a car that was never delivered to him. On the afternoon of January 29, 2004, Seymour confronted appellant at a shopping center in the 2400 block of Good Hope Road and demanded his money back. Appellant claimed not to be carrying any cash -- as evidence, he emptied some of his pockets and allowed Seymour to pat him down -- but said he could get $200 from home. Not trusting appellant to retrieve the money alone, Seymour turned away from him to ask a friend to drive them both to appellant's home. At that moment, Seymour testified, he was shot without warning in the back of the head. Appellant immediately fled from the scene. Although Seymour did not see who shot him, he believed it must have been appellant.
For reasons not explained in the record, no one who was with Seymour and appellant at the time of the shooting testified at trial. The government did call two other witnesses to the events surrounding the shooting, neither of whom actually saw what happened. Walter Jackson testified that he was around the corner when he heard a gunshot and saw appellant run away with a gun in his hand. Jackson said he and a second man (who did not appear at trial) chased appellant into an apartment building, where they lost sight of him. Detective Glenn Giardino, who also was in the vicinity, testified that he observed the chase. Giardino did not see either appellant or his pursuers holding a weapon. He then came upon Seymour lying wounded on the ground and called for an ambulance.
Taking the stand in his own defense, appellant admitted encountering Seymour that afternoon and offering to go home to get money to pay him. According to appellant, he asked his friend "Jay" to drive him there, at which point Seymour stepped between the two men, pushed them apart, and said, "You're going nowhere with Jay. If you're going somewhere, you're going with us." Next, Seymour told someone else (apparently one of Seymour's friends) to "get the gun away from him." Appellant did not see who had a weapon. Moments later, though, he heard a gunshot. Appellant did not know who fired it; fearing for his life, he did not stay to find out. As appellant fled, he was pursued by two individuals, one of whom was holding a "chrome object" of some kind. Appellant eluded them and sought shelter in a stranger's apartment in a nearby building, telling the occupant that someone was trying to kill him. Appellant denied shooting Seymour. He believed that one of Seymour's friends must have done so by accident.
Appellant's only other witness, through whom he sought to introduce the hearsay statement identifying somebody else as the shooter, was Evelyn Rucker. Ms. Rucker, who worked across the street from the 2400 block of Good Hope Road, testified that she was on her lunch break in a nearby McDonald's restaurant at the time the shooting took place. She was inside the McDonald's for only about fifteen minutes. While Rucker did not see or hear the shooting, she saw police cars and a crowd at the scene when she left the McDonald's to walk back to work. Crossing the street where the shooting occurred, Rucker noticed "an elderly gentlemen standing there and he was very upset." Rucker did not know the man but could tell he was upset from "the look on his face and the way he was acting." She asked him if he was okay. As Rucker began to testify that the man answered "No," the prosecutor objected.
At the bench, appellant's counsel explained that he intended to lay the foundation for admission of the man's statements as excited utterances. The prosecutor expressed doubt that the necessary foundation could be laid through Rucker, inasmuch as she had not heard the shooting and, therefore, "would have no way of telling when this elderly gentleman, who presumably makes an excited utterance, saw or heard the shot." The judge responded that appellant's counsel would have to establish whether the declarant "was distressed under the excitement" of the shooting. The judge observed that if the statement came within the excited utterance exception to the hearsay rule, it would be admissible despite the declarant's unavailability.
The examination of the witness resumed. Rucker described the "elderly gentleman" as "pacing in one spot back and forth," "mumbling to himself," and acting "scared and upset." She started to testify that she "asked him was he okay, and he said no he wasn't okay, that the guy with the gun --," but she did not finish the sentence because the prosecutor objected again.
Outside the jury's presence, the judge requested a proffer of Rucker's testimony. Appellant's counsel answered that "she's going to state that this gentleman just started talking to her, she never met him, never seen him before, about the shooting and he's going to point out the actual person that did the shooting." The judge's initial reaction was that this was an identification rather than an excited utterance. He asked what the man said. Appellant's counsel responded: "He says, 'There goes the guy that just shot that young man right there,' and then he points to the person. . . . He also indicated that he still has the gun." Later counsel added that the man "indicated that he just witnessed a shooting." Counsel intimated that Rucker could describe the person whom the bystander singled out; because that person was at the scene of the crime after the police had arrived, he could not have been appellant.
Following further discussion, the judge allowed the statements of Rucker's interlocutor to be presented under the hearsay exception for excited utterances, except for any statements identifying the shooter. Expressing concern over the man's uncertain reliability or capacity ("For all we know, this guy was a paranoid schizophrenic who was sitting there making stuff up"), and citing D.C. Code § 14-102 (2001), the judge ruled his statements of identification inadmissible because he was not available at trial for cross-examination.*fn1 Accordingly, the judge instructed appellant's counsel that Rucker "can talk about anything he said other than that's the shooter. . . . Anything else that he says comes in, but the identification does not because it's hearsay [and] [h]e's not available for cross-examination. . . . You can ask her anything that would otherwise fall under the excited utterance exception to the hearsay rule. But as to the identification, that's inadmissible hearsay since the guy is not here to be cross-examined." As a result of this ruling, the jury never heard that the anonymous "elderly gentleman" had singled out somebody other than appellant as the person who shot Seymour.
There is reason to think the jury found this a close case, even without Rucker's excluded testimony. Before it finally found appellant guilty, the jury deliberated for four days and sent three notes, one after receiving an anti-deadlock ...