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Pelzer v. United States

Court of Appeals of Columbia District

August 17, 2017

Kywone D. Pelzer, Appellant,
United States, Appellee.

          Submitted June 24, 2016

         Appeal from the Superior Court of the District of Columbia (CF2-20908-13) (Hon. Zoe Bush, Trial Judge)

          Before Blackburne-Rigsby, Chief Judge [*] Easterly, Associate Judge, and Reid, Senior Judge.

          Easterly, Associate Judge.

         Kywone D. Pelzer appeals his conviction after a jury trial for robbery.[1] He argues that his conviction should be reversed because the evidence was legally insufficient, and because the trial court made a number of evidentiary and instructional errors. We conclude that the evidence was sufficient to permit a reasonable juror to find Mr. Pelzer guilty of robbery, and we reject all but one of Mr. Pelzer's other arguments-that the trial court abused its discretion when it admitted the recording of the complainant's 911 call into evidence under the hearsay exception for excited utterances. But because the admission of this recording was harmless in light of the other evidence presented, including the complainant's in court testimony, we affirm.

         I. The Evidence at Trial

         Preston Mitchum testified at trial that Mr. Pelzer had robbed him and gave the following account of the incident: as Mr. Mitchum was riding the bus home on a late fall evening, listening to music on his new iPhone, he noticed that a man he did not know (later identified as Mr. Pelzer) was taking special interest in him. Mr. Pelzer, who was sitting some distance away from Mr. Mitchum toward the front of the bus, kept looking over his shoulder to stare at Mr. Mitchum, who was sitting toward the rear of the bus. Mr. Pelzer then moved seats to sit in a forward facing seat immediately adjacent to Mr. Mitchum's side-facing seat. When the bus reached the first of two stops where Mr. Mitchum could have exited, Mr. Mitchum stood up to exit, but when Mr. Pelzer also stood, Mr. Mitchum, now "uncomfortable with what was happening, " sat back down. At the second stop, Mr. Mitchum again stood up (as did Mr. Pelzer), then sat back down again, and then, just as the bus was about to pull away, asked the driver to open the back door and exited the bus. Mr. Pelzer walked off the bus behind Mr. Mitchum.

         Now on the street, Mr. Pelzer approached Mr. Mitchum, who was still holding his phone in his hand, and asked, "what kind of phone is that?" After Mr. Mitchum told him it was an iPhone 5C, Mr. Pelzer "aggressive[ly]" asked, "let me use your phone." Mr. Mitchum initially responded that he did not think that was a good idea. He then noticed Mr. Pelzer making "a hand motion near like the chest area" "inside [his] jacket." Concerned Mr. Pelzer might have a weapon, Mr. Mitchum thought to himself, "it is not worth it, it is just a phone, I can just use my insurance to get another one, it really is not that big of a deal." He began to enter his pass code to unlock the phone for Mr. Pelzer, but before he finished, Mr. Pelzer grabbed the phone and ran across the street. Mr. Mitchum yelled after him, "sir, you have my phone, " but Mr. Pelzer kept running.

         Mr. Mitchum, still thinking it was possible that Mr. Pelzer was armed, did not follow him. Mr. Pelzer ran by a high school student whom Mr. Mitchum knew and who had walked off the bus ahead of Mr. Mitchum and Mr. Pelzer; the student looked at Mr. Mitchum "to make sure I was okay, " and Mr. Mitchum "kind of just waved him on and told him to just go home." Mr. Mitchum waited until Mr. Pelzer was out of sight and then headed home, walking in the same direction Mr. Pelzer had run.

         On his way home, Mr. Mitchum happened upon a police car, reported the theft of this phone to the two officers in the car, Officers Newberry and Robinson, and gave a detailed description of the perpetrator. Mr. Mitchum "made the formal report to 911 when [he] got [home] by using [his] . . . roommate's cell phone, " after realizing that he had not given the police his contact information. The government successfully moved for its admission as an excited utterance and played a recording of this call for the jury.

         Officer Newberry also testified at trial and stated that he and his partner had canvassed the area using the description given by Mr. Mitchum and stopped Mr. Pelzer later that evening. In a show-up procedure, Mr. Mitchum positively identified Mr. Pelzer as the man who had taken his phone. When the police searched Mr. Pelzer, they recovered Mr. Mitchum's iPhone.

         Testifying in his own defense, Mr. Pelzer acknowledged that he had had Mr. Mitchum's iPhone but gave a different account of how it came into his possession. Mr. Pelzer explained that, after he exited the bus with Mr. Mitchum, [2] he needed to make a call quickly, [3] but he could not use his own cell phone because, although he had recently purchased one, he had not yet activated it. Mr. Pelzer asked Mr. Mitchum if he could borrow the iPhone, and Mr. Mitchum gave it to him. Mr. Pelzer then walked ahead of Mr. Mitchum because he "didn't want to be seen with [Mr. Mitchum]."[4] They walked together in this manner, across the intersection and down the street. But at some point, Mr. Mitchum ran away. Mr. Pelzer called after him, but Mr. Mitchum did not return. Mr. Pelzer remained in the area in hopes of reconnecting with Mr. Mitchum. Ultimately, he walked by a police officer on the street and was stopped and arrested; thereafter he gave a statement to the police, clips of which were played during cross examination.[5]

         Having heard this evidence, a jury convicted Mr. Pelzer of robbery. This appeal followed.

         II. Sufficiency of the evidence

         Mr. Pelzer argues that that there was insufficient evidence to find that he took Mr. Mitchum's phone against his will, an essential element to the crime of robbery. See Gray v. United States, 155 A.3d 377, 382 (D.C. 2017). Reviewing the evidence in the light most favorable to the government, as we must, see, e.g., Williams v. United States, 113 A.3d 554, 560 (D.C. 2015), we conclude that a reasonable juror could have concluded that Mr. Mitchum did not voluntarily cede possession of his new iPhone to Mr. Pelzer based on Mr. Mitchum's testimony that Mr. Pelzer staked him out on a Metrobus, followed him off the bus onto the street, aggressively asked to use his phone, and then grabbed it from his hands and jogged away with it, while Mr. Mitchum called after him, "sir, you have my phone."

         III. Excited Utterance Analysis

         Turning to the trial court's admission of Mr. Mitchum's call to 911 as an excited utterance, we first review the law that the trial court and our court must apply. As we recently explained in Mayhand v. United States, the test a trial court must apply before "admitting an out-of-court statement offered for the truth of the matter asserted under the =excited utterance' exception to the rule against hearsay is well established in this jurisdiction and has three parts." 127 A.3d 1198, 1205 (D.C. 2015). The trial court must confirm that the proponent of the hearsay statement has established:

(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.
In all cases the ultimate question is whether the statement was the result of reflective thought or whether it was rather a ...

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