United States v. James Glenn, A/K/A James M. Green , 473 F.2d 191 ( 1973 )

PER CURIAM:

The appellee Glenn was indicted for the murder of one Juanita Johnson by stabbing her with a knife. Before trial he moved to suppress a statement made by Juanita Johnson minutes after she received the fatal wound and within an hour of her death. After a hearing the District Court granted the motion to suppress. The United States appeals, pursuant to 18 U.S.C. § 3731 (1970) and 23 D.C.Code § 104(a)(1) (Supplement V, 1972). We reverse.

The record establishes without contradiction that Glenn and Juanita Johnson lived together in an apartment at 3407 Sherman Avenue, N.W., in Washington, D.C. Between nine and ten o’clock on the morning of the homicide, August 26, 1970, a neighbor heard them “arguing” and heard Glenn tell Juanita Johnson to “get out”. Then they “quieted down” and both left the apartment. Juanita Johnson returned at about one o’clock in the afternoon and around four o’clock the argument resumed. In a loud voice Glenn again told Juanita Johnson to “get out, get out” and Mrs. Johnson said “Glenn, why don’t you leave me alone?”. Glenn and Mrs. Johnson then “ran down the hall” and the neighbor heard the back door slam.

At about 4:20 P.M. on August 26, Officer Knox of No. 10 Precinct was at the stationhouse when two citizens came in and told him that a woman on the sidewalk outside seemed to be in need of help. He went out and saw Juanita Johnson approaching the precinct steps from the sidewalk. She had a blood stain on the left front of her dress about the breast. It was stipulated by the parties at the hearing that the officer would testify that

. . . I met her at the bottom of the steps and assisted her up the steps by placing my right arm around her back and shoulders and steadying her with my left hand. .As I helped her up the steps and into the precinct she stated “Help me. Help me.”. I asked her, “What happened?” and she replied, “He did it”. By this time we were inside and as she stated “He did it”, and she pulled away from me and lunged toward the counter where Officer Buck Jackson was working. I heard her repeat to him: “Help me. Help me. He did it”. I then heard Officer Jackson ask her, “Who did it?” and I heard her reply, “James . . . ”. I heard her conversation with Officer Jackson as I was making my way to the back of the precinct to wash the blood from my right shirt sleeve which I had picked up from Juanita Johnson’s wound in her back.

The stipulated testimony of Officer Jackson, who was on duty at the counter at the 10th Precinct, was that he saw Juanita Johnson enter the precinct, assisted by Officer Knox and that

. As she approached the counter where I was working I observed a small blood stain on the front right side of her chest and also an approximately one-inch cut in her dress in the area of the blood. As she approached she appeared as though she might fall but instead she sort of lunged the several steps necessary to traverse the five foot distance to the counter. She leaned up against the counter and grasped my wrist stating as she came, “Please help me. Please help me. He did it.” I responded: “Who is ‘he’ and what did he do?” She replied: “James . . . ”. I though [sic] at first she said, “James Lynn” but I was only certain about the “James”. I was unable to clearly make out the last name so I said “who”? She replied: “James Glenn”. I then asked: “Where does he live?”' and she replied “3407 Sherman”. Then I asked: “What did he do to you?” and she replied, “I don’t know because he got me in my back.” As she stated this she gestured toward her back and then I noticed that she had blood coming from her back also. There was not, however, enough blood from her front or back to drip onto the floor or elsewhere.

When Juanita Johnson first attempted to tell me the name she gasped as she stated the last name and that is why I was unable to clearly understand her. She was repeatedly gasping for breath and appeared as though she was trying to scream but could not get enough breath.

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Juanita Johnson remained at the counter for approximately 20 to 30 seconds, during which time the above conversation took place. Then I and Officer Knox helped her to a chair. Sitting in the chair she periodically moaned or groaned as though she were in pain. After sitting there for about one minute she began to slump forward. After about four minutes she had slumped so much I feared she would fall onto the floor so I propped her back up. I believe she was still semi-conscious because she continued to groan.

The testimony of Officer Kalinofsky, Desk Sergeant at No. 10 Precinct, was that he saw Juanita Johnson “lunge toward” Officer Jackson and then talk to him, but Kalinofsky did not hear the conversation. He stated that Mrs. Johnson was excited, appeared to be looking for help, and was gasping for breath. He noticed “a small amount of blood on her left breast”. After she was helped to a chair he saw her “go limp and lean forward in her chair” and he then called for an ambulance. The ambulance took Mrs. Johnson to the hospital where she was pronounced dead at 5:14 P.M.

A person walking from the bedroom at 8407 Sherman Avenue to the counter at No. 10 Precinct would travel no more than 502 feet.

Dr. William James Brownlee, Deputy Medical Examiner for the District of Columbia, who performed an autopsy on Mrs. Johnson, testified that she had two significant wounds, one in front and one in the back, both involving the chest. The stab wound in the back produced major bleeding into the right chest from the intercostal artery and vein, causing her lungs to collapse and her heart to shift. The doctor concluded that Mrs. Johnson was in pain from her wounds and knew that she was very seriously injured, but he could not say that she believed death was imminent. He added that “I do not feel the majority of people feel they are going to die”.

In the doctor’s opinion Mrs. Johnson “probably died within half an hour or 45 minutes from the time of the infliction of the wound”; at the most she would not have survived more than an hour and a half.

Dr. Brownlee testified that the autopsy disclosed the presence of “0.28 mili-gram percent of alcohol” in Juanita Johnson’s blood. Although he testified that a normal person would have to consume ten ounces of whiskey in one hour to reach this percentage, he explained that Mrs. Johnson was not a normal person. He found that she was obese, suffering from arthritis of the kidneys, and that she displayed all the metabolic signs which are found in a chronic alcoholic. He concluded that as a “chronic user” she had a tolerance for alcohol and certainly would not lose consciousness at the level found in her blood; on the contrary, he said that such a percentage is “not highly extensive in a major alcoholic”. His opinion was that notwithstanding the alcohol in her blood Mrs. Johnson would have been able to perceive that Glenn, with whom she was living, had stabbed her in the chest and in the back, and that she was capable of giving a correct answer if asked who had stabbed her.

The stipulated testimony of the police officers who observed Mrs. Johnson at the stationhouse was that she was weak, gasping for breath and apparently in pain but that she did not appear to be drunk. She did not smell of liquor, her speech was not slurred and she responded quickly and coherently to questions.

On this record the District Court held that Mrs. Johnson’s statement at the precinct was not admissible, either as a dying declaration or as a spontaneous or “excited” utterance. The court based its ruling on several factors: 1. Mrs. Johnson did not believe at the time that her death was imminent; 2. the court was “not 100 percent certain” that she was in a state of shock; 3. there was a lapse of time between the infliction of the fatal wounds and the making of the statement; and 4. the alcohol in Mrs. Johnson’s blood made her statement “unreliable and suspect”.

Declarations relating to the circumstances of a violent crime, made by the victim shortly after its occurrence, are sometimes admitted in evidence as exceptions to the hearsay rule, upon the theory that the shock of the injury and the excitement of the moment have produced an utterance that is spontaneous and sincere as distinguished from one engendered by deliberation and design. Such statements may be admissible although made in response to an inquiry. Guthrie v. United States, 92 U.S.App.D.C. 361, 207 F.2d 19 (1953); Beausoliel v. United States, 71 App.D.C. Ill, 107 F.2d 292 (1939). Nor is it decisive that an appreciable time elapsed between the infliction of the injury and the making of the statement. United States v. Kearney, 136 U.S.App.D.C. 328, 420 F.2d 170 (1969); Guthrie v. United States, supra. The decisive factor is that the circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection. Whether this conclusion is justified depends upon the facts of each case and must be determined by the District Court in the exercise of sound judicial discretion. ■ Such discretionary action is of course subject to review and must be reversed if clearly erroneous.

On the facts of this ease we think the District Court was clearly in error since Mrs. Johnson’s statement was plainly admissible as a spontaneous utterance.

From the testimony of Dr. Brownlee that Mrs. Johnson probably died within half an hour or 45 minutes after she had been stabbed, and the proof that No. 10 Precinct was only about 500 feet from the scene of the stabbing, it is plain that Mrs. Johnson made her statement only minutes after she was fatally stabbed. She was bleeding from her wounds, in pain, gasping for breath, and about to lapse into unconsciousness followed by death. Her situation was not conducive to detached reflection and deliberation; on the contrary the only reasonable conclusion from the uncontradicted proof is that when she spoke she was in the grip of high excitement. In short, as in the Kearney case, supra, the circumstances rebut “the possibility that truth was undercut by speculation or fabrication.” The percentage of alcohol in Mrs. Johnson’s blood, which troubled the District Court, was a factor that went to the weight of her declaration, not to its admissibility. Had she survived and been called as a witness against the appellee, her testimony would have been received, and its weight would have been for the jury. Likewise it was for the jury to assay the weight of her spontaneous declaration.

In addition to the cases we have cited there are many others that support the admission of Mrs. Johnson’s statement. See, for example, Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 19 L.Ed. 437 (1869); Grant v. United States, 28 App.D.C. 169 (1906); Commonwealth v. Pike, 3 Cush. (57 Mass.) 181 (Mass. Sup.Ct.1849) cited with approval and discussed by the Supreme Court in Insurance Co. v. Mosley, 75 U.S. (8 Wall.) at 406.¹

Had this issue arisen on the trial of another person for the homicide we would be shocked if the court had kept from the jury the decedent’s statement that Glenn and not the defendant on trial was the guilty man. We think the rule should be neutral as between prosecution and defense.

The order of the District Court granting appellee’s motion to suppress is reversed and the case is remanded for trial.

It is so ordered.

1 . On November 20, 1972 the Supreme Court prescribed and transmitted to the Congress rules of evidence for United States Courts and Magistrates. Rules 803 and 806 recognize and approve the principles we have applied here. Thus Rule 803 provides in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(2) Excited, utterance. — A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Rule 806. provides in part:

When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.