Dixon v. State Of Del.
| Citation | 996 A.2d 1271 |
| Decision Date | 20 May 2010 |
| Docket Number | 2009.,No. 393,393 |
| Parties | Dawann DIXON, Defendant Below, Appellant,v.STATE of Delaware, Plaintiff Below, Appellee. |
| Court | United States State Supreme Court of Delaware |
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Court Below-Superior Court of the State of Delaware, in and for New Castle County, Cr.A. No. 0804008973.
Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware, for appellant.
James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware, for appellee.
Before HOLLAND, JACOBS and RIDGELY, Justices.
In May 2008, the defendant-appellant, Dawann Dixon (“Dixon”) was charged by indictment with Assault in the First Degree, Reckless Endangering in the First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. After a three-day jury trial, Dixon was convicted of all charges, except for Reckless Endangering in the First Degree, which was dismissed by the Superior Court upon motion by Dixon. Dixon was subsequently sentenced to thirty-eight years of imprisonment, suspended after ten years for a period of probation.
In this appeal, Dixon argues that the trial judge erred by permitting the State to present, as evidence, the recording of a conversation between a 911 operator and Tosha Hacket (“Hacket”). Dixon argues that the trial judge erred in concluding that Hacket's statements to the 911 operator were admissible as “excited utterances” under Delaware Uniform Rule of Evidence (“D.R.E.”) 802(2). Dixon also argues that the admission of the recording violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
We have concluded that both of Dixon's arguments are without merit. Therefore, the judgments of the Superior Court are affirmed.
In the early morning hours of March 28, 2008, Kevin Butcher (“Butcher”) returned home from work. Shortly after arriving home, Butcher decided to go to the intersection of 24th and Lamotte Streets in Wilmington to speak with friends. At approximately 2 a.m., Butcher saw Dixon in the area. A few moments later, Butcher was shot in the leg.
Instead of going immediately to the hospital, Butcher went home. After awakening his mother, Butcher went with her to the front of the house. Butcher waved down a passing police cruiser, told the officer that he had been shot, and was transported to Wilmington Hospital. Butcher was treated for his injuries and was ultimately released, though the bullet remained lodged in his leg.
Three hours after he arrived at the hospital, Butcher was interviewed by Detective Matthew Hall (“Detective Hall”) of the Wilmington Police Department. Detective Hall showed Butcher a six photo line-up containing Dixon's photo. Butcher looked at the photo array for approximately ten seconds and identified Dixon as the man who shot him. Butcher also told Detective Hall “a more pinpoint area” to look for the crime scene. When Detective Hall and his partner went to the 100-block of East 23rd Street, they recovered three spent .25-caliber shell casings.
On April 6, 2008, Wilmington police received a report of a male banging on the front door of a house and refusing to leave. Officer Joseph Bucksner (“Officer Bucksner”) was dispatched to the home, where he found Dixon standing at the front door of the home. Officer Bucksner ordered Dixon to sit down on the front steps and remove his hand from his pocket. Dixon refused. Officer Bucksner then grabbed Dixon by the arm, forced him to the ground and, with the help of his partner, handcuffed him. During a pat-down search of Dixon, Officer Bucksner found a loaded .25-caliber handgun and a Crown Royal bag containing .25-caliber ammunition. The gun seized from Dixon was ultimately determined to match the shell casings recovered from the scene of the crime.
Shortly after the shooting, a 911 dispatcher received a call from an individual who hung up almost immediately after the dispatcher came on the line. In accordance with police department policy, the dispatcher attempted to return the call. After two unsuccessful attempts, the dispatcher was able to reach the caller, a woman later identified as Hacket. The following is the exchange between Hacket and the 911 dispatcher:
The State sought to introduce Hacket's 911 call into evidence. Dixon objected and argued that the 911 call was inadmissible hearsay because Hacket failed to appear at trial. The Superior Court held that the content of the 911 call was admissible under the “excited utterance” exception to the hearsay rule.
Generally, hearsay statements are not admissible at trial. 1 There are, however, certain exceptions to that general rule. 2 These exceptions are defined by circumstances that are deemed to provide an indicia of trustworthiness to the statement. One exception is an “excited utterance,” which is defined as “[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.” 3 There are three foundational requirements that must be satisfied before a statement can be admitted pursuant to the excited utterance exception in Rule 803(2):
(1) the excitement of the declarant must have been precipitated by an event; (2) the statement being offered as evidence must have been made during the time period while the excitement of the event was continuing; and (3) the statement must be related to the startling event.4
According to Dixon, Hacket's statements to the 911 operator were not “excited utterances” because too much time had elapsed between the shooting and her call and Hacket was no longer under the “stress of excitement.”
For admission as a present sense impression under D.R.E. 803(1) a sine qua non is for the hearsay statement to be made either immediately or in very close temporal proximity to the precipitating event. 5 For admission as an excited utterance under D.R.E. 803(2), however, “[w]hile the amount of time that has elapsed from...
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...(2006). 26. Del. R. Evid. 801(c). 27. Crawford v. Washington, 541 U.S. at 53–54, 124 S.Ct. 1354 (emphasis added). 28. Dixon v. State, 996 A.2d 1271, 1277–78 (Del.2010) (citing Davis v. Washington, 547 U.S. at 822–24, 126 S.Ct. 2266). A “non-testimonial” statement, on the other hand, is made......
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