Lyons v. US

• Decision Date: 03 October 1996
• Docket Number: No. 89-CF-250,89-CF-299.,89-CF-250
• Citation: 683 A.2d 1080
• Parties: Richard L. LYONS, a/k/a Walter Lyons, Appellant, v. UNITED STATES, Appellee. Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

683 A.2d 1080

Richard L. LYONS, a/k/a Walter Lyons, Appellant, v. UNITED STATES, Appellee.

Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee.

Nos. 89-CF-250, 89-CF-299.

District of Columbia Court of Appeals.

Reargued January 19, 1995.

Decided October 3, 1996.

W. Gary Kohlman, Washington, DC, with whom Richard T. Brown, was on the supplemental brief, for appellant Lyons. Brenda Grantland, Mill Valley, CA, was on the original brief for appellant Lyons.

Daniel M. Schember, Washington, DC, appointed by the court, for appellant Cooper.

Roy W. McLeese, III, Assistant United States Attorney, with whom Jay B. Stephens, United States Attorney at the time the brief was filed, and John R. Fisher, Terence J. Keeney, and Peter R. Zeidenberg, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN and TERRY, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge.

This opinion is a companion to that of the en banc court in Lyons v. United States, 683 A.2d 1066 (D.C.1996), issued today. The full court has held that there is no ground for reversal in the denial of appellants' motion for a mistrial based on a contact between a juror and a police detective who testified briefly at appellants' trial. The remaining issues presented on appeal have been referred by the en banc court to this division. With respect to four of these issues, we reaffirm what we said in Lyons v. United States, 683 A.2d 1066 (D.C.1996). As to the one claim of error that has not previously been addressed — appellant Cooper's assertion that the trial court's instructions on the murder charge confused the jury, to her prejudice — we find no merit in it. Accordingly, we vacate one redundant conviction of appellant Cooper, but otherwise we affirm the convictions of both appellants.

I

The facts of this case are set forth at length in this court's en banc opinion and require only a brief summary here. Appellants operated a cocaine-selling business with Lyons acting as the supplier and Cooper as one of his distributors ("runners"). During the summer of 1985, Lyons solicited a third individual, Daniel Roy, to kill Stephen Royster, another runner in Lyons' narcotics business with whom Lyons had been experiencing difficulties. On February 26, 1986, Roy obtained a pistol from appellant Cooper and mortally wounded Mr. Royster. Shortly after the shooting, Roy returned the pistol to Cooper.¹

Following a three-week trial, a jury found appellant Lyons guilty of first-degree murder while armed,² assault with a dangerous weapon (ADW),³ and conspiracy to distribute cocaine.⁴ Appellant Cooper was found guilty of second-degree murder while armed,⁵ ADW, conspiracy to distribute cocaine, and carrying a pistol without a license.⁶

In this opinion we address those issues not decided by the en banc court. We reject appellants' claims of error and, with the one exception noted, affirm their convictions.

II

Appellants contend that the trial court erred in admitting into evidence the decedent's statement that "T-Bone told them to shoot me."⁷ The court ruled that the statement was admissible under the spontaneous utterance and dying declaration exceptions to the hearsay rule. This ruling was correct on both grounds.

There are three prerequisites to the admission of a statement under the spontaneous utterance exception to the hearsay rule:

(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.

Nicholson v. United States, 368 A.2d 561, 564 (D.C.1977) (citation omitted). The admissibility of a spontaneous utterance "is committed to the sound judicial discretion of the trial court. We will reverse on appeal only if a ruling is clearly erroneous." Alston v. United States, 462 A.2d 1122, 1128 (D.C. 1983) (citations omitted). Appellants claim that Royster's statement about T-Bone was not a spontaneous utterance because Royster "had time to reflect, premeditate, and construct" it. We are satisfied that the statement met all three requirements for admission as a spontaneous utterance.

First of all, the shooting was a "serious occurrence" that produced a state of "physical shock" in Royster. Karen Flaherty testified that when she came to Royster's assistance, he was groaning and in pain. She saw that he had been shot in the chest, and that although the wound "wasn't bleeding a lot outside ... it was a good hole there." This injury plainly fits within the types of situations which this court has recognized as "serious occurrences." See Gayden v. United States, 584 A.2d 578, 585 (D.C.1990) (admission of spontaneous utterance upheld when the declarant had been shot six times and was "rolling on a doorstep in extreme pain"), cert. denied, 502 U.S. 843, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991); Young v. United States, 391 A.2d 248, 250 (D.C.1978) (declarant had been stabbed and was bleeding profusely); Nicholson v. United States, supra, 368 A.2d at 564 (declarant had been stabbed thirty minutes before making statement). Second, Ms. Flaherty stated that no more than ten minutes passed between the firing of the shots and Royster's statement; thus the statement came "within a reasonably short period" after the shooting. See Alston v. United States, supra, 462 A.2d at 1127 ("when the utterance is made immediately after the disturbing incident ... or a few minutes after the incident," it fits within the spontaneous utterance exception (citations omitted)). Finally, the circumstances "in their totality suggest spontaneity and sincerity." Contrary to Lyons' assertion, there was no significant interval in which Royster "was fully conscious" and "had time to think and speculate." Rather, the testimony showed that in the short time between being shot and making the statement Royster was in great pain, and that his condition was quickly deteriorating. The fact that Royster made the statement in response to a question from Ms. Flaherty is not proof that he reflected before speaking. Young v. United States, supra, 391 A.2d at 250.

It also was not erroneous for the trial court to admit the statement under the dying declaration exception to the hearsay rule. "To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death." Shepard v. United States, 290 U.S. 96, 99, 54 S.Ct. 22, 23, 78 L.Ed. 196 (1933). The record supports the trial court's conclusion, well founded in the evidence, that Royster realized his "extreme circumstances even though he did not articulate" them. See McFadden v. United States, 395 A.2d 14, 16 (D.C.1978) ("The court can infer the victim's sense of impending death from the circumstances — from the nature and extent of his wounds").⁸

For these reasons, we find no error in the admission of Royster's statement.

III

Appellants argue that they were substantially prejudiced because the trial judge refused to permit two of the government's witnesses to invoke their Fifth Amendment privilege against self-incrimination. The judge found that both witnesses had waived the privilege by testifying before the grand jury. Appellants acknowledge the rule that a defendant in a criminal proceeding normally does not have standing to assert the constitutional rights of others. Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 965-968, 22 L.Ed.2d 176 (1969). More specifically, a defendant does not have standing to complain of an erroneous ruling on a witness' claim of privilege. Long v. United States, 124 U.S.App. D.C. 14, 19, 360 F.2d 829, 834 (1966) (citing Bowman v. United States, 350 F.2d 913, 916 (9th Cir.1965) ("Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it"), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966)). Appellants argue, however, that this case fits within the exception to this principle announced in Ellis v. United States, 135 U.S.App. D.C. 35, 416 F.2d 791 (1969).

In Ellis the court held:

A witness who voluntarily testifies before a grand jury without invoking the privilege against self-incrimination, of which he has been advised, waives the privilege and may not thereafter claim it when he is called to testify as a witness at the trial on the indictment returned by the grand jury, where the witness is not the defendant, or under indictment.

Id. at 44, 416 F.2d at 800; accord, Salim v. United States, 480 A.2d 710, 714 (D.C.1984). The Ellis court also recognized, however, that when a judge erroneously rejects a witness' claim of privilege, "`the reasons which underlie our rule denying standing to raise another's rights ... are outweighed by the need to protect ... fundamental rights. . . .'" 135 U.S.App. D.C. at 43, 416 F.2d at 799 (quoting Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953)). Thus, contrary to Alderman and Long, "a defendant adversely affected in fact has standing to bring such departure from the judicial province to the appellate court for review and correction." Ellis, supra, 135 U.S.App. D.C. at 44, 416 F.2d at 800.

We hold that the Ellis exception to the no-standing rule of Alderman and Long is inapplicable in the instant case because there was no erroneous ruling on the Fifth Amendment waiver issue. The trial judge conducted a lengthy voir dire of the two witnesses in question and reviewed their grand jury testimony in order to determine the validity and scope of their waivers.⁹ He then made specific findings of fact and ruled that each of them had knowingly and voluntarily waived his privilege. Because that ruling is amply supported by the...