Alston v. United States

• Decision Date: 16 June 1983
• Docket Number: No. 81-1446.,81-1446.
• Citation: 462 A.2d 1122
• Parties: Cecil G. ALSTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

462 A.2d 1122

Cecil G. ALSTON, Appellant, v. UNITED STATES, Appellee.

No. 81-1446.

District of Columbia Court of Appeals.

Argued November 23, 1982.

Decided June 16, 1983.

Samuel M. Shapiro, Rockville, Md., for appellant.

Helen M. Bollwerk, Asst. U.S. Atty., Washington, D.C., with whom Stanley S Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., at the time the briefs were filed, Michael W. Farrell and Mary Ellen Abrecht, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER and MACK, Associate Judges, and GARDNER,^* Associate Judge, Superior Court of the District of Columbia.

MACK, Associate Judge:

Following a jury trial, appellant was convicted of assault with intent to commit carnal knowledge in violation of D.C.Code § 22-501 (1981). Appellant asserts that testimony of three government witnesses as to statements made by the victim, appellant's four-year-old step-daughter, were improperly classified as spontaneous utterances and erroneously admitted under that exception to the hearsay rule.¹ We find that the challenged statements do not constitute spontaneous utterances. Since we cannot say that their admission did not substantially sway the judgment of the jury in its deliberations, we reverse and remand.

PRETRIAL HEARING

Prior to trial, the court held an evidentiary hearing to rule on whether hearsay statements made by the victim, in which she identified appellant as the perpetrator of the crime, were admissible under the excited utterance exception. Appellant's wife, Mrs. Alston, testified that on the evening of November 1, 1980, she and her husband had a disagreement regarding a party which she did not want to attend; ultimately, Mr. Alston left the apartment alone. That night, Mrs. Alston went to sleep in her bedroom and her daughter came into bed with her. As the sun was rising, Mrs. Alston noticed her husband taking the child out of their bed and putting the child in her own room. When Mrs. Alston awoke at 8:00 or 9:00 a.m. the next morning, November 2, her daughter was already up and in her parent's bedroom playing with Brandy, the Aiston's infant. Mrs. Alston testified that during this time period, her daughter showed no signs of being upset. Mr. Alston left the house to purchase a newspaper at about 9:00 or 9:30 a.m. Sometime after Mr. Alston left, Mrs. Alston noticed her daughter in the bathroom wiping her bottom lightly as if she were sore. Mrs. Alston put the child on a bed, examined her genital area and observed an incision; she also noticed blood on her daughter's panties. The child was not crying at this time, nor did she complain of any pain.

Mrs. Alston asked her daughter what had happened but received no response. The mother then exhibited extreme anger; she shook the child several times, repeating the same question. Her daughter then said Butch² had done it. At this point, Mrs. Alston went to the apartment of Mr. Alston's aunt, Mrs. Walton, who lived in the same building, returned to the Alston apartment with her, and both adults examined the girl. Mrs. Alston, Mrs. Walton and the child then left the apartment, went to their physician's office and were referred to Children's hospital. At the hospital, Mrs. Alston met with Detective Carol White, Officer Gloria Donahue and Tremaine Terry (a social worker with the child abuse, sex team at the Hospital) all of whom also spoke with the child. Mrs. Alston thought that Ms. Terry had asked her daughter whether Butch had lain on her and that the child nodded her head affirmatively.

The only other witness who testified at the hearing was Dr. Harris Feinstein, a resident in pediatric medicine at Children's Hospital, who qualified as an expert in abuse and sex abuse of children. Dr. Feinstein had examined the victim in the emergency room at Children's Hospital. Before the examination, he asked her why she was at the hospital; the child didn't answer but was "apprehensive and she began crying." Dr. Feinstein then performed a physical examination and noticed three fresh lacerations (i.e., cuts experienced within the last 24 hours) in the genital area. His diagnosis was that "these were injuries that could be consistent with some sort of forced entry or attempted entry into the vaginal area" and, though it was possible that some other trauma could create that sort of wound, it was "very highly unlikely."

Based on the testimony presented at the pretrial hearing, along with the government's proffer that statements made by the victim in response to questions posed by Mrs. Alston and Detective Carol White would be offered at the trial, the court, noting that, "the indicia of trustworthiness, as far as this child's utterances are concerned, is marginal at best" nonetheless ruled the statements admissible.

TRIAL

At trial, the victim was totally unresponsive to questioning, and the court found her to be unavailable. The prosecution's case began with testimony by Dr. Feinstein which was, by and large, identical with his testimony at the pretrial hearing.

After being examined by Dr. Feinstein, the child was seen by Ms. Tremaine Terry, a social worker on the sex abuse team at Children's Hospital, in an interviewing playroom. Ms. Terry testified that the child was in the room for 30 to 45 minutes before any questioning began. Ms. Terry asked her what had happened; the child said nothing, but hid her face and continued to play. Ms. Terry then called the child over to her. She stood at Ms. Terry's knee and the social worker again asked her if she could tell her what happened; the child responded "Butch did it." When asked what it was that Butch did, she said, "he got on top of me." At the time of this communication, according to Ms. Terry, the child was in distress and her voice was shaking.

Detective Carol White, an investigator with the sex offense branch of the Metropolitan Police Department, was also present in the playroom and questioned the victim. Detective White testified that when she asked the child who hurt her down there, pointing to her vaginal area, that she said "Butch." Detective White then asked where the event had occurred; when she asked if it happened in the mother's room, the child indicated no; when asked if it occurred in her room, the child said yes.

Mrs. Walton testified that on November 2 at about 1:00 p.m., Mrs. Alston came to her apartment. Upon returning to the Alston residence, they examined the child and Mrs. Walton saw three marks in her genital area. Mrs. Walton testified that Mrs. Alston asked her daughter if "Butch did it, get into bed with her." The child never spoke but nodded her head indicating an affirmative response. Mrs. Alston repeated the same question numerous times; the child nodded her head at times, and shook her head to indicate a negative response at other times. According to Mrs. Walton, the child did not seem frightened but was playing normally. The three then went to a physician's office and afterward to Children's Hospital. Mrs. Walton was present in the playroom with Mrs. Alston and the child when Ms. Terry was questioning the child. According to Mrs. Walton, although Mrs. Alston repeatedly questioned her daughter as to what happened, she never responded. When Ms. Terry asked if Butch "laid on top of you" and "if Butch did this to you," the child remained silent. Mrs. Alston did not testify at the tria1.³

In denying appellant's motion for judgment of acquittal, the court stated:

I believe the totality of the circumstances under which it appears the statements were made by this child are sufficiently compelling, given the fact that there — was beyond any doubt by the medical testimony that this child had sustained a recent traumatic injury to her genital area, and coupled with the circumstances, surrounding circumstances, under which these statements were made and the persons to whom they were made to, together with the fact that the child herself has been demonstrated to be unavailable as a witness on this subject, due to her age and her emotional state and condition, under such circumstances these hearsay statements made have sufficient trustworthiness and the indicia of reliability to be admitted and considered in this matter by the jury under such circumstances.

Appellant now appeals the conviction on the ground that the testimony of Ms. Terry and Detective White as to comments made by the victim identifying appellant as the assailant, and the testimony of Mrs. Walton as to the child's nodding in response to questioning, constitute inadmissible hearsay and were improperly admitted under the excited or spontaneous utterance exception. We agree.

There is no dispute that the challenged testimony constitutes hearsay and is, thereby, generally inadmissible. However, [d]eclarations, exclamations and remarks made by the victim of a crime after the time of its occurrence are sometimes admissible upon the theory that "under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy."

Beausoliel v. United States, 71 U.S.App. D.C. 111, 113, 107 F.2d 292, 294 (1939) (citations omitted).

In the District of Columbia, the elements of a spontaneous or excited utterance are "(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...