Brown v. United States

OBERLY, Associate Judge:

A jury convicted appellant Martin “Tony” Brown of second-degree murder while armed, based largely on statements made by the victim, his grandfather. Appellant argues that (1) the trial court erred by admitting the victim’s statements under the excited utterance exception to the hearsay rule, (2) admission of the statements violated his rights under the Confrontation Clause, and (3) there was insufficient evidence to prove that appellant was armed with a dangerous weapon. We hold that appellant’s claims lack merit and affirm his conviction.

I. Factual Background

Appellant lived with his eighty-nine-year-old grandfather, Howard Brown, who was last seen uninjured in his home on December 7, 2006, sometime between noon and 1:00 p.m. At about 5:00 p.m. on that date, Brown was found lying on the floor in a “massive amount” of his own blood, with his head “busted open” (with three deep gashes), still bleeding from his open wounds, and with his “ear hanging off.” He had a telephone receiver in his hand. His initial sounds as he spoke to the first neighbors on the scene (Chris Irby and Malanda Mias) were only grunts. After the neighbors found Brown, the scene became “chaotic” and “frightening,” as one neighbor was “screaming pretty violently” and others were yelling hysterically, loud enough to be heard by the 911 operator and in the neighboring house. When neighbor Patricia Johnson, a nursing assistant, arrived on the scene she took Brown’s pulse and, finding none, thought he was dead, but he then opened his eyes and she spoke to him, “trying to orient” him. Johnson testified that when she asked Brown how he was feeling, he said, “I’m not doing so good,” and that when she asked Brown what had happened, he said he did not know. When she then asked him who had done this to him, Brown “responded with ‘Tony’ ” (appellant’s nickname). Mias testified at trial that she, too, “asked [Brown] who did this to him,” and that he “sound[ed] like he was trying to catch his breath” and said “Tony.” Johnson kept talking to Brown to keep him focused and to prevent him from lapsing into unconsciousness. Asked whether Brown seemed dazed or in shock, Johnson answered that he appeared to be in shock.

Alan Trimble, a paramedic who arrived on the scene within five to ten minutes of the neighbors finding Brown, testified that the blood-drenched carpet in the house squished under his feet as he walked near Brown. Trimble testified that Brown was still bleeding at the time and was coming in and out of consciousness, and that, in the ambulance on the way to the hospital, Brown, who continued to bleed from his head, was “very emotional,” “obviously in pain,” and “in a lot of distress.” Neighbor Shirron Spivey testified at trial that she rode to the hospital in the front of the ambulance and that she heard one of the ambulance staff ask Brown “who did this” and he “told them Tony did it.”¹ The trauma surgeon who attended Brown at the hospital had to perform “urgent repair” to keep Brown, who still “had severe bleeding,” from “exsanguinating ... [i]n layman’s terms, bleeding to death.” Later, when doctors, police, or family members asked him what happened, Brown said he did not know or “did not know him[.]”

Sometime after December 7, 2006, Spi-vey talked to appellant about visiting his grandfather in the hospital, and appellant told her, “I can’t go see my grandfather. How do you think I would feel if he recognized me?” He added, “I’ll go if you go with me.” In January 2007, appellant told Elsie Spivey, Shirron’s sister, that he had killed the person who assaulted his grandfather, and he threatened to “duct tape [her] mouth” and “put [her] in the garage,” because she had been talking about appellant “doing this to his grandpa.”² The government also presented evidence that appellant may have believed (mistakenly, it seems) that he would inherit the house in which he and his grandfather lived upon his grandfather’s death. On March 28, 2007, Brown died as a result of his injuries.

The court held a hearing prior to appellant’s trial to determine whether statements made by the victim were admissible under the excited utterance or dying declaration exceptions to the rule against hearsay and ruled that the statements were admissible as excited utterances.

II. Legal Principles

“Whether a statement constitutes [an excited] utterance depends upon the particular facts of each case.” Smith v. United States, 666 A.2d 1216, 1222 (D.C.1995). Where, as here, the issue was preserved for appeal, our review focuses on the different aspects of the trial court’s decision-fact — finding, application of the law, and exercise of discretion. See Dutch v. United States, 997 A.2d 685, 689 (D.C.2010) (“We review a trial court’s decision to admit hearsay evidence for abuse of discretion; however, the determination of whether a statement falls under an exception to the hearsay rule is a legal conclusion, which we review de novo.”); Odemns v. United States, 901 A.2d 770, 776 (D.C.2006) (“the underlying factual findings are reviewed under the ‘clearly erroneous’ standard and ... the decision whether to admit or exclude the proffered statement, based on those factual findings, is reviewed for abuse of discretion”). In determining whether the trial court abused its discretion, we consider “not only whether the judge erred in the ruling but also whether the error was of a magnitude requiring reversal.” Newman v. United States, 705 A.2d 246, 257 (D.C.1997) (citing (James) Johnson v. United States, 398 A.2d 354, 366-67 (D.C.1979)).

Our precedents establish that for a statement to be admissible under the excited utterance exception, “it must be characterized as a spontaneous declaration, not only tending to explain the act or occurrence with which it is connected but also indicating a spontaneous utterance of a thought while under the influence of that act or occurrence, with no opportunity for premeditation or deliberation.” Watts v. Smith, 226 A.2d 160, 163 (D.C.1967); Harris v. United States, 373 A.2d 590, 593 (D.C.1977) (concluding that “the trial court did not err in finding that during the time decedent was in the emergency room he was substantially and predominantly under the influence of the trauma which had been inflicted upon him, and that the declarations which he made at the time ... do qualify as exceptions to the hearsay rule under spontaneous declarations” (quotation marks omitted)). We have said that for the excited utterance exception to apply, there must be “(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.” Odemns, 901 A.2d at 776 (emphasis added).

III. Brown’s Statements Were Properly Admitted as Excited Utterances

The trial court found that the record showed “a serious occurrence which would cause anyone to be in a state of nervous excitement or physical shock”; that Brown was “barely conscious [and] bleeding profusely on the floor of his home” and that his breathing was “difficult”; and that “Brown was in a state of physical shock, if not also nervous excitement at 5:00 p.m. that afternoon.” The court also found that “in the totality of the circumstances, there [was] an indication of spontaneity and sincerity” in Brown’s utterance, because he was “barely conscious” when his neighbors arrived, and because he was “still extremely seriously injured, and physically, if not mentally impaired at the time and [his neighbors] were the first persons to whom he had a chance to utter any words after the experience of the assault against him.” The court also found “very little in this record to suggest that [Brown] was in any position to do anything by way of premeditation, calculation, construction, or any other fabrication of a falsehood.” The court found it “important” that the “first persons [Brown] saw after being beaten, were the ones to whom he made the utterance immediately as soon as he was nudged into consciousness.” The testimony summarized above supports each of the court’s factual findings, and the record also supports the trial court’s legal conclusion that Brown’s statements identifying “Tony” as his attacker were admissible as excited utterances.

There is no dispute that there was a serious and startling occurrence that caused Brown to sustain his injuries. There also should be no dispute that Brown, who was bleeding profusely, barely conscious, grunting, and needing to “catch his breath” at the time he uttered “Tony,” remained “under the influence of’ that serious occurrence when he spoke to his neighbors and to the paramedic. See Watts, 226 A.2d at 163. The uncontrovert-ed testimony that Brown “looked like he was in shock” when Johnson roused him (just before he responded to her “who did this” question by answering “Tony”), was “very emotional,” “obviously in pain,” and “in a lot of distress” when in the ambulance, and had nearly bled to death, establishes that the serious occurrence caused both “nervous excitement” and “physical shock in the declarant.”³ Odemns, 901 A.2d at 776. To be sure, Trimble described Brown’s demeanor in the ambulance, minutes after Brown made the utterance “Tony” to Johnson and to Mias while still lying on the floor. Although our dissenting colleague urges that “[o]ur focus must be on [Brown’s] condition ‘at the time the statement was uttered’ ” (post at 138 n. 1, quoting Alston v. United States, 462 A.2d 1122, 1127 (D.C.1983)), there is no reason to think that Brown’s demeanor was any different a few minutes earlier, and no reason why Alston precludes us from relying, in appropriate circumstances, on a description of a declarant’s mental state moments after he spoke to draw inferences about the declarant’s state of mind at the time he spoke. Especially in light of Johnson’s testimony about Brown looking like he was in shock, it is reasonable to infer that Brown was rendered nervous and excited upon being nudged into consciousness and oriented to his situation at the same time that his neighbors were screaming hysterically and as he recognized that he was “not doing so good.” Further, as noted above, Spivey testified that she heard Brown respond while in the ambulance that “Tony did it” — a response Brown gave at the time when, according to Trimble, he was highly emotional, in distress, and in pain.

The trial court recognized that an excited utterance must be made “within a reasonably short period of time after the occurrence so as to assure that the declar-ant has not reflected upon his statement or premeditated or constructed it,” Odemns, 901 A.2d at 776, but did not make a finding as to the approximate time when the attack occurred.⁴ However, “the time element is not controlling.” Alston, 462 A.2d at 1127; see also Snowden v. United States, 2 App.D.C. 89, 94 (D.C.Cir.1893) (“[N]o inflexible rule as to the length of interval between the act charged against the accused and the declaration of the complaining party, can be laid down as established.”). Further, an inference that the attack occurred closer to 5 p.m. (the time when Brown was found) than to noon (the last time he was seen before the attack) would not have been unreasonable. Notably, defense counsel urged the jury to conclude, from the facts that the carpet squished with blood when the paramedic walked on it and that Brown had not bled out despite his gaping wounds, that the attack occurred closer to 5 p.m. than to noon. Although the government could not discount the possibility that five hours passed between the attack and Brown’s utterances, for the excited utterance exception to apply, the time between a startling event and an utterance need not be proven beyond a reasonable doubt or even by clear and convincing evidence. See United States v. Woodfolk, 656 A.2d 1145, 1150 n. 14 (D.C.1995) (noting that “preponderance of the evidence is the proper standard of proof for determining the admissibility of an excited utterance”).

In any event, we have recognized that even where a startling occurrence happened hours before an utterance was made, the utterance may be admissible under the exception if it was made when an ensuing event made the speaker newly aware of the gravity of the occurrence. See Price v. United States, 545 A.2d 1219, 1226 (D.C.1988) (utterance was admissible even though it was made three hours after declarant witnessed a shooting, because it was made during a phone call in which declarant learned that her lover had been severely injured during the gunfire). The evidence supports our conclusion that Brown’s having been nudged into consciousness while his neighbors were screaming hysterically, and his recognition at that time that he was not “doing so good,” constituted a startling event. His utterances followed that “event”⁵ quite closely in time, without his having time for deliberation or fabrication, and, in light of his physical condition, without his having the capacity (as the trial court put it) “to do anything by way of premeditation, calculation, construction, or any other fabrication of a falsehood” before he responded to questioning.⁶ Cf. People v. Robinson, 41 A.D.3d 1183, 837 N.Y.S.2d 800, 801 (2007) (reasoning that where victim made a statement when he was barely conscious and had difficulty breathing, the evidence established that his statement was “not made under the impetus of studied reflection”) (citation and quotation marks omitted); see also 2 McCoRmick, Evidence § 272 at 255 (6th ed.2006) (noting that the rationale for the excited utterance exception “lies in the special reliability that is furnished when excitement suspends the declarant’s powers of reflection and fabrication”). However long Brown might have been conscious and able to deliberate after the attack and before he was found (which apparently was not long enough for him to use the telephone receiver that was in his hand to dial 911 or otherwise call for help), the evidence supports an inference that his utterances when his neighbors found him barely conscious would not likely have resulted from deliberation.⁷ Cf. State v. Ward, 2001 WL 287472, at *8-9, 2001 Wash.App. LEXIS 485, at *28-24 (Wash.Ct.App. Mar. 26, 2001) (reasoning that even though evidence showed that victim had time to fabricate before he placed a 911 call and did actually lie to the 911 operator, his statement to police officer who arrived on the scene was admissible as an excited utterance, because by that time the victim had nearly bled to death, had no pulse, and was barely conscious, such that his statement to the officer “was unlikely to have resulted from the exercise of choice or judgment”).

Finally, the trial court did not err by concluding that the circumstances in their totality suggested that Brown’s utterances were spontaneous and sincere. The foregoing discussion explains why the utterances appear to have been spontaneous — meaning not “the result of reflective thought” and not “made under the impetus of reflection.” Simmons v. United States, 945 A.2d 1183, 1189 (D.C.2008). In addition, the trial court found — and the record supports a finding — that “all [Brown] said over and over” was “Tony.” Mindful of the preponderance-of-the-evidence standard that the trial court was required to apply and the “clearly erroneous” standard that applies to our review, we see no reason to disturb the trial court’s conclusion that although Brown’s utterance “Tony” might have been the “product of confusion” or might have indicated “who he wanted to contact,” the “most likely interpretation” is that “he meant ... that Tony is the one who did it.” The dissenting opinion cites the evidence (from the portion of the trial transcript that discusses what could be heard on the tape of the 911 call) that, around the time when Brown uttered the word “Tony” in response to Johnson’s question “who did this to you,” neighbors were asking, “Where’s Tony?” and “hollering” up and down the stairs to see whether Tony was in the house. Post at 140. Our colleague concludes that this circumstance renders Brown’s utterance “Ton/’ untrustworthy — as if what Brown did was parrot the name he heard called. Id. But Mias and Spivey, too, testified that they heard Brown answer “Tony” to the question “who did this?,” and there was no evidence that the name “Tony” was being spoken by others at the time when Brown made the utterances that Mias and Spivey heard. In addition, there was testimony that others’ names were also spoken to Brown— Johnson testified that she said to Brown, “this is Pat, and Sherrin [sic] is here” — but no evidence was presented that Brown parroted those names.

Finally, we are not troubled by the inconsistent responses to inquiries about the identity of his assailant that Brown provided while in the hospital. For purposes of determining the admissibility of the utterances Brown made immediately after he was discovered, we are not entitled to judge trustworthiness by comparing those utterances to other evidence. “We have held that [when determining whether statements fall within the excited utterance exception] the trial court should focus on the circumstances ascertainable upon utterance of the statement, not on other circumstances that might become known at trial or hearing.” Reyes v. United States, 933 A.2d 785, 790 n. 6 (D.C.2007) (emphasis added) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“hearsay evidence used to convict a defendant must possess the indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.... Thus, we must look to the statement itself and to the circumstances of its delivery for evidence of its inherent reliability.”)).⁸ Therefore, for purposes of the analysis of the admissibility of Brown’s utterance, the trial testimony by Brown’s granddaughter — that when she visited Brown at various hospitals after the attack he told her that he did not know who had attacked him — is irrelevant. Nor is it relevant for purposes of the excited utterance analysis that, weeks after the attack, when asked by his doctor at the National Rehabilitation Hospital whether he “knew what had happened,” Brown said that “he did not know anything that happened.”⁹ This evidence was, of course, grist for the defense at trial, but it does not render erroneous the trial court’s decision to admit as excited utterances the first utterances Brown made when his neighbors found him bleeding and barely conscious.¹⁰

IV. The Evidence that Appellant Was Armed with a Dangerous Weapon Was Sufficient

D.C.Code § 22-4502 imposes an additional penalty for committing a crime “when armed with or having readily available any ... dangerous or deadly weapon.” In the District of Columbia, “stationary objects” or “attached ... fixture[s]” that are “a pre-existing part of the surroundings” are not “weapons” within the meaning of the statute. Edwards v. United States, 583 A.2d 661, 664-68 (D.C.1990). Appellant argues that the government failed to introduce sufficient evidence that he was armed with “a dangerous weapon” because Brown’s injuries “could have been caused by being repeatedly slammed against the stationary fixtures in his living room[.]”

Viewed in the light most favorable to the government,¹¹ the evidence permitted the jury to infer that the assailant used a dangerous weapon, that is, a detached object rather than an attached fixture, to cause Brown’s injuries. Even though police did not recover the object itself, “the government may prove the existence of a weapon by adequate circumstantial evidence.” In re M.M.S., 691 A.2d 136, 138 (D.C.1997) (citing Paris v. United States, 515 A.2d 199, 204 (D.C.1986)).

In Edwards, the “government’s theory of the case was that Edwards assaulted his wife by repeatedly slamming her head against the bathtub, sink, and toilet in the bathroom of their apartment.” 583 A.2d at 662. We accepted that theory as providing the factual basis for the conviction and concluded that the legislature had not intended the enhancement provision to cover such objects. Id. at 667-68. Here, by contrast, no one suggested that Brown’s head had been rammed into a stationary object.

The medical examiner who conducted the autopsy testified that Brown had been “beaten about the head.” When asked whether “a hand was used or an object was used to cause” his injuries, she responded, “I don’t believe it was a hand because of the skull fracture.” One of Brown’s neighbors, Irby, testified that it looked “like someone hit [Brown] with something.” The testimony and photographs admitted at trial also indicated that the blood on the walls, ceilings, and shelving in the decedent’s home was blood spatter. Bearing in mind that the government “need not disprove every theory of innocence in order to sustain a conviction,” Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C.2004) (quotation marks omitted), we think the jury reasonably could have inferred that Brown was assaulted with a detached object. See Paris, 515 A.2d at 203-04.

V. Conclusion

Because the trial court did not abuse its discretion by admitting Brown’s statements as excited utterances, and appellant’s other arguments are meritless, we affirm the judgment of conviction.

So ordered.

1 . Trimble confirmed that, in the ambulance, he asked Brown who had assaulted him and that Brown was able to speak, but Trimble could not remember what Brown said in response to the question.

2 . Appellant was charged with threatening Elsie Spivey, but the jury was unable to reach a verdict on this count.

3 . As to "nervous excitement,” although Johnson is a nursing assistant, nothing in the record suggests that she intended her comment about Brown looking like he was in shock in a medical sense. She made her statement "I guess you can say he looked like he was in shock” in answer to the inquiry, "He was dazed, right? He looked like he was in shock?” The context suggests that Johnson used the term "shock” according to what the dissenting opinion considers the "general” definition: "sudden agitation or excitement of emotional or mental sensibilities.” Websters New Intl. Dict. 2317 (2d ed.1952). Contrary to the dissent’s view, on this record we can scarcely call this an "uncritical use” or "rote recitation[ ]” of the word "shock.” Post at 138.

Johnson, who testified that she felt no pulse in Brown's neck and thought he was dead, recounted that when he opened his eyes, he "scared the hell” out of her and that she had to "catch up with [her] heart” and get over her "initial shock” before she could speak to Brown. This does not prove that Brown felt the same emotions, but it is an additional factor supporting an inference, that he, too, would have been "scared” and in "shock” as he was nudged into consciousness, heard neighbors screaming, and witnessed Johnson's reaction.

4 . The court recognized that the attack "might have been as recently as five minutes before the arrival of his neighbors. It might have been as early as around noon when he was seen uninjured by a witness. And it might have been anytime in between those two times.”

5 . The dissent contends that Brown’s utterances do not "relate to” this second startling event. Post at 139. But Brown uttered “Tony” in response to questioners nudging him back to consciousness as he lay in a pool of his own blood on his living room floor, and asking "who did this to him” as at least one of his neighbors was "screaming ... violently.” "The startling event or condition need not be the principal act underlying the case. For example, a later startling event may trigger associations with an original trauma, recreating the stress earlier produced and causing the person to exclaim spontaneously.” State v. DiBartolo, No. 17261-9-III, 2000 WL 968474, at *14, 2000 Wash.App. LEXIS 1195, at *41-42 (Wash.Ct.App. July 13, 2000) (citations and quotation marks omitted). That aptly describes the situation here.

6 . Thus, we agree with the government’s argument that "because of Mr. Brown’s great pain, and because he had just been startled into consciousness by Ms. Johnson, ... he lacked the opportunity to reflect on his statement."

7 . Such an inference was well within the ken of the trial court, without the need for expert testimony or additional proof.

8 . Cf. People v. Fratello, 92 N.Y.2d 565, 572, 684 N.Y.S.2d 149, 706 N.E.2d 1173 (N.Y.1998) (recognizing the analogous principle that "[g]enerally, the bias of an excited utterance declarant functions as a basis for impeachment of the declaration, thus pertinent to the weight, rather than admissibility of the declaration” (citing 6 Wigmore, Evidence § 1751 at 224 (Chadbourn Rev. 1976))).

9 .' This latter evidence was not actually inconsistent with what Brown said to Johnson when he was found: He answered "I don’t know” in response to the question “what happened?,” but responded with "Tony” when asked “Who did this to you?”

10 .Appellant’s argument that Brown’s statements were testimonial (and therefore barred by the Confrontation Clause) is also without merit. Brown’s statements were made to his neighbors (and not police), the setting was frantic and informal, he was severely injured, and the "statements and actions of both [Brown] and [his] interrogators” do not indicate that "a person in [Brown’s] situation would have had a ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution.’ " Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1160, 1165, 179 L.Ed.2d 93 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).

11 . Where a challenge to the sufficiency of the evidence has been preserved, we view the evidence “in the light most favorable to the government, giving full play to the right of the [fact-finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.” McCraney v. United States, 983 A.2d 1041, 1056 (D.C.2009) (quotation marks omitted); see also In re R.S., 6 A.3d 854, 859 (D.C.2010) (same).