Best v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: FISHER
• Citation: Best v. United States, 66 A.3d 1013 (D.C. 2013)
• Decision Date: 30 May 2013
• Docket Number: No. 12–CM–857.,12–CM–857.
• Parties: Curtis J. BEST, Appellant, v. UNITED STATES, Appellee.

66 A.3d 1013

Curtis J. BEST, Appellant,

v.UNITED STATES, Appellee.

No. 12–CM–857.

District of Columbia Court of Appeals.

Argued April 11, 2013.

Decided May 30, 2013.

Jamison Koehler, for appellant.

Stephen Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Kasia Preneta, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and EASTERLY, Associate Judges, and SCHWELB, Senior Judge.

FISHER, Associate Judge:

Appellant Curtis J. Best challenges his convictions for assault, attempted possession of a prohibited weapon (PPW (b)), and malicious destruction of property,¹ claiming that they were based on insufficient evidence. He also asserts that the trial court improperly admitted hearsay evidence and violated his Sixth Amendment right to confrontation. We affirm the judgment as to destruction of property, but reverse and remand for further proceedings as to assault and attempted PPW (b).

I. Background

Appellant and Lawrence Robinson are stepbrothers who lived in one side of their father's duplex, which was comprised of two units and a common basement, all separated by locked doors. Sometime after 10:30 p.m. on the evening of April 27, 2012, appellant's father, Herbert Best, came home to find that the lock on the door leading from the basement to his side of the duplex was broken, and the door jamb was damaged. Appellant later told his father that he had broken the door in order to gain access to his father's side of the duplex because it was locked.

At trial, Officer Terrence Eberhardt testified that he and his partner responded to a radio call regarding an “assault in progress” at the duplex at approximately eight or nine o'clock that evening. Upon arrival, Officer Eberhardt saw both appellant and Robinson standing outside the house near the fence line. Both men had visible injuries and bloodstained clothes, Robinson apparently bleeding from the hand, appellant with blood on his face. Officer Eberhardt described Robinson as “hysterical” and “frantic,” pacing back and forth, and waving his hand.

After describing Robinson's demeanor, Officer Eberhardt recounted what Robinson told him had transpired that evening:

What [Robinson] stated was he was laying in the bed, and the defendant came up to him, approached him and told him that he looked like he had been, he was selling drugs. So, he needed a haircut, and he looked and the defendant was standing over top of him with a knife.... Trying to cut, cut his, cut the complaining witness's hair.

Officer Eberhardt also testified that he saw a trail of blood throughout the house. There were bloody bed sheets and a bloodstained knife in the bedroom that Robinson identified as his. Officer Eberhardt also saw severed dreadlocks in the hallway.

Officer Eberhardt did not specify where his conversation with Robinson took place or over what period of time. Nor did he describe the content of questions asked or answers given, giving no indication whether appellant blurted out any information. Instead, he testified, “I can't quote specifics,” and proceeded to summarize Robinson's statements from that evening. Officer Eberhardt's testimony laid the foundation for admitting photographs of the scene and of the weapon, which, along with Eberhardt's own observations and his summary of Robinson's statements, served as the only evidence regarding the assault and attempted PPW (b) charges. Robinson did not testify.

Appellant objected on hearsay and confrontation grounds to Officer Eberhardt's summary of Robinson's statements. The government argued that Robinson's statements were admissible under the excited utterance exception to the hearsay rule, citing, among other things, Robinson's demeanor. Moreover, the government argued that Robinson's statements were nontestimonial because they were made during an ongoing emergency and, as a result, were not barred from admission by the Sixth Amendment's Confrontation Clause. Judge Alprin admitted Robinson's statements, saying:

So, it's not something the Government has, the police have attempted to obtain after the emergency is resolved. That is the distinction. I remember now. That's actually my recollection of the case.² I think I'm going to permit this testimony.

During the trial, Judge Alprin also heard argument from both sides and asked questions regarding the “excited utterance doctrine.” In his findings of fact after the trial, he explained:

It is a Crawford case ... and before, while the situation was being calmed down what was being said by the complaining witness Robinson to the officer I think is admissible, and it was an excited, it seems to have been an excited utterance....

After presiding over the non-jury trial, Judge Alprin found appellant guilty of all charges but unlawful entry. He granted appellant's motion for judgment of acquittal on that charge because the government had failed to show that appellant was not permitted to be in his father's side of the duplex. Indeed, appellant's father testified that “he's welcome.”

II. Analysis

Appellant contends that the trial court erred in admitting Robinson's statements, and that there was insufficient evidence to support his convictions. We consider each issue in turn.

A. Admission of Robinson's Statements

Robinson's statements had to clear two hurdles to admissibility at trial—the rule against hearsay and the Sixth Amendment's Confrontation Clause. The proponent of the evidence bears the burden of demonstrating its admissibility. Young v. United States, 63 A.3d 1033, 1038 n. 12 (D.C.2013) (addressing a confrontation issue and stating, “The government, as the proponent of [the] testimony, had the burden of establishing the basis for its admissibility when appellant objected to it.”); In re M.L.H., 399 A.2d 556, 558 (D.C.1979) (“[O]n proper objection it is clearly the burden of the party seeking its admission, to identify the appropriate [hearsay] exception and to demonstrate that the testimony fell within it.”). Concluding that admission of the statements violated the Confrontation Clause, we do not address appellant's hearsay challenge.

The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” This core constitutional protection prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A statement is testimonial if it is

[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact for use in the prosecution or investigation of a crime, or a statement made under circumstances objectively indicat[ing] that the declarant's primary purpose [was] to establish or prove past events potentially relevant to later criminal prosecution.

Young, 63 A.3d at 1039–40 (footnotes and internal quotation marks omitted) (alterations in original).³

Depending on the attendant circumstances, the primary purpose of the declarant or the primary purpose of responding officers may take greater prominence, though both are relevant to the inquiry. Where a statement is made “in response to questioning ..., a principal factor to be considered is the primary purpose of the interrogation.” Graure v. United States, 18 A.3d 743, 756–57 (D.C.2011). This is an objective, rather than a subjective, inquiry, focusing on “ ‘the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.’ ” Young, 63 A.3d at 1040 (quoting Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 1156, 179 L.Ed.2d 93 (2011)). “A situation that is ‘fluid and somewhat confused,’ ... is likely to have ‘lacked any formality that would have alerted [the victim] to or focused him on the possible future prosecutorial use of his statements.’ ” Graure, 18 A.3d at 757 (quoting Bryant, 131 S.Ct. at 1166).

Here, the government argued that Robinson's statements were made during an ongoing emergency and were therefore nontestimonial. Statements made in such a context have been held to be nontestimonial because “an emergency focuses the participants on something other than ‘prov[ing] past events potentially relevant to later criminal prosecution.’ ” Bryant, 131 S.Ct. at 1157 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)) (alteration in original). The circumstances generally are unstructured and informal, and the participants' likely primary purpose is to address the emergency. See Young, 63 A.3d at 1040 (“A statement made primarily for a [non-evidentiary] purpose, such as enlisting police assistance to meet an ongoing emergency, is not testimonial.”) (internal quotation marks omitted); Graure, 18 A.3d at 757 (citing Bryant, 131 S.Ct. at 1166) (informality of circumstances surrounding an ongoing emergency increases likelihood that statements are nontestimonial).

“[W]hether an emergency exists and is ongoing is a highly context-dependent inquiry.” Bryant, 131 S.Ct. at 1158. The duration of the “ongoing emergency” is of central importance because what begins as a nontestimonial statement may evolve over time into a testimonial one. See id. at 1159 (“ ‘[A] conversation which begins as an interrogation to determine the need for emergency assistance’ can ‘evolve into testimonial statements.’ ”) (quoting Davis, 547 U.S. at 828, 126 S.Ct. 2266);Long v. United States, 940 A.2d 87, 98 n. 12 (D.C.2007) (same).

We faced such a situation in Lewis v. United States, 938 A.2d 771 (D.C.2007), where we distinguished between nontestimonial statements given during an emergency, and statements that became testimonial once any emergency...