March 18, 2010
PHYLLIS GOODWINE, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia. (DVM1321-08) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued December 14, 2009
Before RUIZ and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
Appellant, Phyllis Goodwine, appeals from her simple assault conviction, arguing that the trial court committed reversible error in admitting certain hearsay statements and evidence of her prior bad acts, as well as in excluding the details of the victim's prior convictions. Appellant also asserts that an alleged recantation by the victim and the absence of a witness at trial created reasonable doubt as to her guilt.*fn1 Appellant further contends that because her trial was to the court, not a jury, the trial court plainly erred by adding 100 hours of community service to her sentence. We conclude that none of her claims has merit and affirm.
I. Factual Background
The evidence presented at trial was as follows. On the evening of May 28, 2008, Henry Moore, appellant's ex-boyfriend and the father of her three year old daughter, arrived at the home of appellant's sister to drop off their daughter. As Moore was returning to his car, appellant approached him and called him a "b****," kicked his car, and then began to hit him with a bookbag and her hand. Moore called 911 from his cell phone during the assault.
Officer Michelle Riddlehoover arrived on the scene within two to three minutes after the 911 call and found Moore standing outside of his car, "pacing back and forth" and "kind of shaking a little bit."She noticed that "he had a small red . . . mark on his left temple." When Officer Riddlehoover inquired about what happened, Moore responded "fast" and in an "elevated" voice, appearing "frustrated . . . [and] upset and agitated," that appellant had followed him after he dropped off their daughter, kicked his car, "hit him in the head," and then "sped off." At trial, Moore testified that, despite his efforts to block the assault, appellant "got a couple of good hits on [his] face and [his] temple." Later that night, emergency room personnel prescribed him pain medication for "a closed head injury."
II. Legal Analysis
A. Evidentiary Claims
1. Moore's Statements to Police and a 911 Call were Properly Admitted
Appellant argues that the trial court erroneously admitted both the tape of Moore's 911 call and Officer Riddlehoover's testimony regarding Moore's statements, alleging that both pieces of evidence were inadmissible hearsay and admitted in violation of the Confrontation Clause of the Sixth Amendment. With respect to the Confrontation Clause, it is not violated where, as here, the declarant Moore testified at trial and was available for cross-examination by defense counsel.*fn2
Moreover, the trial court properly admitted the tape of Moore's 911 call because there can be no question that his statements on the tape satisfy both the excited utterance and the present sense impression exceptions to the hearsay rule.*fn3 See generally Johnson v. United States, 980 A.2d 1174, 1185 (D.C. 2009); Hallums v. United States, 841 A.2d 1270, 1276 (D.C. 2004). Moore made the 911 call while "Ms. Goodwine was hitting [him]" and he was "angry and upset."*fn4 Moore's statements to Officer Riddlehoover also qualify as excited utterances and were thus properly admitted. See Johnson, 980 A.2d at 1185. Appellant argued that these statements were not spontaneous, as required by the excited utterance exception, because they were made after the assault had ended and the appellant had left the scene. The fact that the assault had ended, however, does not end the inquiry. Id. at 1185-86. Officer Riddlehoover arrived on the scene two to three minutes after the 911 call was made and she spoke with Moore immediately upon arrival. Officer Riddlehoover's testimony about Moore's mental and physical state upon her arrival makes clear that he was still in "a state of nervous excitement" due to the assault. Id. at 1185. Thus, we cannot say that the trial court clearly erred in finding that two to three minutes was "a reasonably short period of time" after a personal attack such that Moore's statements were not a result of reflection or invention. Id. at 1185-86.
2. The Trial Court Properly Limited the Impeachment of Moore to His Prior Conviction and Properly Declined to Consider Appellant's Prior Bad Acts
Appellant alleges two errors regarding the admission of prior bad acts: (1) that the trial court improperly allowed testimony regarding her prior bad acts, and (2) that the trial court should have allowed cross-examination on the details of Moore's prior conviction. With respect to appellant's first argument, appellant ignores the fact that the court sua sponte prevented testimony regarding appellant's prior bad acts and explicitly declined to consider any other crimes evidence.Accordingly, we find no error. We also hold that the trial court did not err in preventing the elicitation of testimony regarding the details of Moore's prior CPWL conviction. While a witness's credibility may be attacked with a criminal conviction involving dishonesty or false statement,*fn5 impeachment is essentially limited to the fact of the conviction.*fn6 The trial judge has the discretion to limit the scope of cross-examination, and he did not abuse that discretion in the limitations he imposed here. Crutchfield v. United States, 779 A.2d 307, 316 (D.C. 2001) (citing Flores v. United States, 698 A.2d 474, 479 (D.C. 1997)).
B. Appellant's Sentence Did Not Require a Jury Trial
Appellant was sentenced to 180 days of incarceration, with the execution of all but 120 days suspended, to be followed by two years of supervised probation and a requirement of 100 hours of community service.*fn7 She contends that this sentence entitled her to a jury trial because (1) the 100 hours of community service constituted a deprivation of liberty that rendered her offense sufficiently serious to require a jury trial, and (2) because the financial impact of 100 hours of community service on her ability to work exceeded the $1,000 statutory limit.
"The Supreme Court has held that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision, and that the most relevant criterion for determining the seriousness of the offense is the severity of the maximum authorized penalty." Thomas v. United States, 942 A.2d 1180, 1186 (D.C. 2008) (quoting Blanton v. North Las Vegas, 489 U.S. 538, 541 (1989) (internal quotation marks omitted). An offense is considered petty if it is punishable by a sentence of no more than 180 days of incarceration or a fine of no more than $1,000. See D.C. Code § 16-705 (b)(1)(A).*fn8 Given that appellant's misdemeanor simple assault conviction falls squarely within the crimes we define as petty,*fn9 appellant "must show that the additional penalties (i.e. other than incarceration) are so severe that they clearly reflect a legislative determination that the offense in question is a serious one." Thomas, 942 A.2d at 1186. See also Blanton, 489 U.S. at 541. We review the sentence issued by the trial court for plain error, Wilson v. United States, 785 A.2d 321, 326 (D.C. 2001), because the appellant failed to raise this issue at sentencing. See also Thomas, 942 A.2d at 1186 (holding that appellant's claim that the trial court erroneously held a bench trial instead of a jury trial was subject to the plain error standard of review where appellant did not object in the lower court).
D.C. Code § 16-712 (a) empowers the Superior Court to "require a person convicted of any offense as a condition of probation or as a sentence itself, to undertake reasonable services to the community for a period not to exceed 5 years in duration."*fn10 Here, the court ordered Ms. Goodwine to perform 100 hours of community service as part of her two-year probation, a sentence that is well within the discretion granted to the court by § 16-712 (a). Appellant provides no evidence that § 16-712 (a) reflects a legislative determination that the imposition of community service, for a period of no longer than five years, converts a petty offense into a serious one. Appellant also fails to cite to any case in this, or any other jurisdiction, which has held a crime "serious" because the defendant was subjected to a community service requirement.*fn11 Indeed, the Supreme Court has observed that "[p]enalties such as probation or a fine may engender a significant infringement of personal freedom, but they cannot approximate the loss of liberty that a prison term entails." Blanton, supra, 489 U.S. at 556.
Following the Supreme Court's logic, we do not find the restriction on appellant's liberty resulting from community service to approximate the deprivation of liberty of incarceration, and we disagree that the imposition of 100 hours of community service, well within the limitations of § 16-712 (a), renders an otherwise petty offense serious enough to warrant a jury trial. We also reject appellant's argument that 100 hours of community service amounts to a fine greater than $1,000, the maximum permitted under § 22-404, because we reject the premise that community service can be analogized to a fine.*fn12