Argued October 9, 2015
Appeal from the Superior Court of the District of Columbia (CF1-5804-13) (Hon. Russell F. Canan, Trial Judge)
James Whitehead, Public Defender Service, with whom James Klein, Samia Fam, Alice Wang, and Chris Kemmitt, Public Defender Service, were on the briefs, for appellant.
Danny Lam Nguyen, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Sharon Donovan, and Seth M. Gilmore, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly and McLeese, Associate Judges, and Reid, Senior Judge.
This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the appellant's convictions are vacated, and the matter is remanded for further proceedings.
Roy W. McLeese, Associate Judge:
Appellant Matthew Gabramadhin challenges his convictions for kidnapping and assault with intent to commit first-degree sexual abuse. Mr. Gabramadhin argues that the trial court committed reversible error by admitting into evidence a recorded emergency phone call under the excited-utterance exception to the rule against hearsay. We agree and therefore vacate Mr. Gabramadhin's convictions.
The evidence at trial was as follows. The complainant, M.H., was a student at Georgetown University. She left a party sometime between midnight and 2:00 a.m. on April 8, 2013. M.H. was intoxicated, having consumed at least six drinks. As she was walking toward Georgetown, she passed through Dupont Circle. Mr. Gabramadhin approached her and said that he was upset because he had broken parole and would have to go back to prison. M.H. sympathized briefly and kept walking. As she was crossing a bridge on P Street, Mr. Gabramadhin walked behind her and talked to her again. Mr. Gabramadhin then grabbed M.H. from behind, said that he had a gun, forced her into a nearby park, and took her purse and cell phone from her. M.H. believed that she lost her shoes in the struggle.
The two sat down in the park, and during the ensuing conversation Mr. Gabramadhin repeated that he was upset about returning to prison. Mr. Gabramadhin also indicated that he wanted to have sex with M.H. Eventually, Mr. Gabramadhin got on top of M.H. and pinned her to the ground. M.H. screamed and thrashed around, but Mr. Gabramadhin shoved a knit object into her mouth and repeatedly offered to pay M.H. to have sex with him. He warned her not to make him use his gun. Mr. Gabramadhin also put a chalky, bitter powder into M.H.'s mouth, which she spat out. Mr. Gabramadhin eventually told M.H. he would get off her if she would be quiet. She complied, and Mr. Gabramadhin got off her. M.H. pleaded to Mr. Gabramadhin to let her go, but he refused. After further discussion of his parole status, Mr. Gabramadhin again pinned M.H. down, saying that he wanted to have sex with her. M.H. screamed and resisted. After again threatening to use a gun, Mr. Gabramadhin agreed to let M.H. go if she would not tell anyone about what had happened. M.H. agreed, and Mr. Gabramadhin let her go.
As she left the park shortly before 4:00 a.m., M.H. called the Georgetown University Public Safety Department. A Georgetown officer spoke with her for several minutes and then transferred her call to a 911 operator, with whom she spoke for several additional minutes. The trial court admitted a recording of the call into evidence in its entirety as an excited utterance. On the call, M.H. first stated that she had just been assaulted. After providing information about her location, M.H. explained, "He lifted me into the . . . into the park" and "put some drugs . . . I don't know what it was into my mouth . . . ." M.H. continued updating the officer on her location and expressed concern about standing in one place to wait for the police. When the Georgetown officer transferred the call to a 911 dispatcher, M.H. again reported that she had just been assaulted. M.H. then answered numerous questions, providing her phone number, location, name, and age, repeating answers slowly and clearly when prompted. Responding to other questions, M.H. told the 911 dispatcher that her assailant "put something in [her] mouth, " "told [her] he had a gun, " and "pinned [her] down, " but that he "did not . . . make [her] do anything sexual. He just wanted to talk to [her]." M.H. also described her assailant in response to questions, describing him as "Hispanic or Black" with short hair or a shaved head, wearing jeans and a tee shirt and carrying a backpack. The call ended when the police arrived at M.H.'s location. In total, the call lasted roughly twelve minutes.
The police observed that M.H. was crying and had leaves and dirt on her back and leaves in her hair. M.H. appeared to be intoxicated. M.H. described herself at trial as having been "very confused" and "really afraid" when she spoke with the police that morning, and she further testified that she "could have been in shock."
After obtaining a description from M.H., officers located Mr. Gabramadhin while canvassing the area. Mr. Gabramadhin became nervous when officers informed him that he matched the description of an assault suspect. When an officer unsnapped his holster, Mr. Gabramadhin ran, jumped about ten feet down into a canal, and hid under a bridge. The police apprehended Mr. Gabramadhin, and M.H. identified him as her assailant. When the police questioned Mr. Gabramadhin about the incident, he falsely claimed that he did not remember what had happened.
M.H. brought the police to the park, where officers recovered items including a sock and a Metro fare card with part of M.H.'s name written on it. Officers also recovered M.H.'s shoes, which were in two different locations ...