Players: Associate Judges Fisher and Easterly, Senior Judge Ruiz. Opinion by Associate Judge Easterly. Abram J. Pafford for Mr. Mayhand. Trial judge: Stuart G. Nash.
Facts: Mr. Mayhand was convicted of obstructing
justice for threatening Mr. Ballard, a witness against Mr. Mayhand’s brother in
another criminal case. Ballard did not
testify at Mayhand’s trial. Instead, the
prosecution relied on the recording of a 17-minute 911 call during which Mr. Ballard
narrated as he walked about ten blocks “with Mr. Mayhand in close proximity,”
provided descriptions of himself and Mr. Mayhand, and explained his involvement
in the case against Mr. Mayhand’s brother.
Four times during the call, Mr. Ballard stated that Mr. Mayhand had
threatened to stab him at some unspecified earlier time. The trial court found that although there was
“strain in his voice,” Mr. Ballard’s demeanor was “fairly level and coherent
and balanced” throughout the call, except at one point when he could be heard
“screaming at Mr. Mayhand.” After the
screaming, Mr. Ballard resumed “his conversational pattern with the operator”
and “his reasonable tone of voice.” The
trial court admitted the entirety of the 911 call, finding that the four times
Mr. Ballard accused Mr. Mayhand of threatening to stab him fell within the
hearsay exception for excited utterances and the remainder within the hearsay
exception for present sense impression.
The government also presented responding officer Chih to
testify that when he detained Mr. Mayhand on the scene, Mr. Mayhand yelled
expletives and called Mr. Ballard a “snitch.”
When Officer Chih thereafter interviewed Mr. Ballard, he observed Mr. Ballard
“trembling,” sweating, looking over his shoulder, breathing rapidly, and with a
pulsing vein in his neck.
Although it found the above evidence sufficient to
support a conviction for obstruction, the Court reversed Mr. Mayhand’s
conviction because Mr. Ballard’s accusations on the 911 call—the only evidence
that Mr. Mayhand threatened Mr. Ballard—were improperly admitted.
Issue: Were Mr. Ballard’s recorded statements that Mr.
Mayhand threatened to stab him excited utterances?
Holding: No.
The “limited” excited utterance hearsay exception assumes “that
statements made while a person is overcome by excitement or in shock are fundamentally
trustworthy” because “the wash of excitement blocks the reflection and
calculation that could produce false statements.” Mr. Ballard’s statements about being
threatened fail all three prongs of the test designed to ensure this rationale
applies. First, Mr. Ballard’s demeanor
on the 911 call shows he was not in “a state of nervous excitement or physical
shock,” which requires “a much higher level of emotional upset” than “mere
vocal strain or indication of some anxiety.”
Second, the statements were not made “within a reasonably short period
of time after the occurrence,” so as to ensure they were truly
spontaneous. There was no evidence of or
finding about when the alleged threats occurred; and anyway, the fact that Mr. Ballard
did not mention the alleged threats until after almost ninety seconds of
answering the 911 operator’s questions showed that the accusation and the three
others that followed were not spontaneous.
Finally, the totality of the circumstances did not “suggest spontaneity
and sincerity of the remark.” In
addition to the factors above, the circumstances include the fact that Mr. Ballard
“had the wherewithal to call the police, not merely to ask for help, but to
document Mr. Mayhand’s criminal behavior and to identify him to police.” This “self-awareness is the antithesis of the
mental state required to support” a declaration as an excited utterance.
Of Note:
- The “nervous excitement or physical shock” prong cannot be satisfied via an inference that an outwardly calm declarant is “masking” his inner emotional turmoil, since the very control required to do so shows him to be capable of deliberation. Neither can that prong be met with evidence that the declarant, while calm at the time of the triggering event, “later became excited and distraught” when describing it.
- While there is some “temporal flexibility,” particularly for highly shocking or violent events, “the law generally requires an excited utterance to be more or less contemporaneous with” the event that induced it. Although some D.C. cases have found statements made within a half hour of the triggering event to be close enough in time, each case must be assessed upon its particular facts. “There is no standard thirty-minute grace period for the admission of excited utterances.”
- A statement made in response to questioning will not be “automatically disqualified” as an excited utterance, but if “the questions produce deliberative and thoughtful answers, then the necessary element of spontaneity and non-reflection is missing.”
- In a footnote, the Court questions, without deciding, whether the proffered utterance itself can “serve as the sole proof that an exciting event had occurred.”
- On Mr. Mayhand’s alternative sufficiency challenge, the Court holds that the relevant provision of the obstruction statute, D.C. Code § 22-722(a)(4), does not require proof of “a ‘nexus’” between the alleged threats and an intent to prevent Mr. Ballard from testifying against Mr. Mayhand’s brother. Rather, it requires that the threats were made “on account of” incriminating information Mr. Ballard already gave the investigating authorities. Officer Chih’s testimony that Mr. Mayhand called Mr. Ballard a “snitch,” combined with the 911 call, could support a reasonable inference that that Mr. Mayhand threatened Mr. Ballard for that reason. FT.
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