U.S. v. Alexander, 02-3005.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation331 F.3d 116
Docket NumberNo. 02-3005.,02-3005.
PartiesUNITED STATES of America, Appellee, v. Joey C. ALEXANDER, Appellant.
Decision Date13 June 2003

Appeal from the United States District Court for the District of Columbia (No. 00cr00224-01).

Mary M. Petras, appointed by the court, argued the cause for the appellant.

Patricia A. Heffernan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, John R. Fisher, and Roy W. McLeese III, Assistant United States Attorneys, were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, Joey C. Alexander, seeks reversal of his conviction for the unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1), and, in the alternative, vacatur of the mandatory minimum sentence imposed by the district court. Specifically, Alexander challenges the district court's (1) admission of a 911 call under the "excited utterance" exception to the rule against hearsay; (2) admission of prejudicial "other acts" evidence; (3) denial of his motion for a new trial; and (4) imposition of a mandatory minimum sentence under 18 U.S.C. § 924(e)(1). He also challenges the sufficiency of the evidence. For the reasons set forth below, see infra Part II, we affirm the district court's rulings and uphold Alexander's conviction and sentence.

I. Background

On June 17, 2000, at 5:40 p.m., Yvette Young called 911 from her workplace at 723 12th Street, N.E., in Washington, D.C.1 She told the emergency dispatcher that the man she was dating had just threatened her at her workplace, told her that he would return to "do something" to her and said that he was going to go to her apartment to "mess" it up. Young also told the dispatcher that her boyfriend had keys to her apartment and that "he also has a gun." When the dispatcher asked, "He got a gun on him now?," Young replied, "Yeah. And I need someone to go to my apartment [until] my mother come[s] [to] pick me up from work to meet me there." The dispatcher told Young that the police would not go to her apartment because, by giving her boyfriend keys to the apartment, she had given him permission to enter. Nevertheless, the dispatcher told Young that she would send the police to her workplace so that Young could "fill out a report for threats."

At approximately 5:52 p.m., MPD Officer Daynell Schaffrath arrived at the group home where Young worked. When Schaffrath met Young at the front door of 723 12th Street, she appeared "stressed, afraid, [and] frightened." 2/6/01 Tr. 155. Soon after Schaffrath interviewed Young about the report,2 the appellant appeared at the front door. Young then jumped out of her seat, pointed at Alexander and said, "[t]hat's him right there, Officer." Id. at 176. Although Schaffrath ordered Alexander several times to step away from the door and to keep his hands away from his body, Alexander refused to comply. Instead, Alexander opened the screen door and began to step inside the room. Schaffrath then stepped toward Alexander, placing herself between him and Young, and radioed for assistance. When Schaffrath raised a can of pepper spray, Alexander finally complied with her orders.

After Schaffrath arrested and handcuffed Alexander, MPD Officer Craig Reynolds arrived at the scene. Reynolds subsequently searched the appellant, recovering $900 in cash, a wallet, a set of keys, a driver's license and a cell phone. Shortly thereafter, Reynolds approached a brown Buick that was parked on the street approximately 50 to 75 feet from the group home. Looking through the windshield, he saw a handgun lying on the floorboard of the car on the driver's side. On the passenger seat, he saw a blue baseball cap.

Crime scene search officer Ronny Arce recovered the loaded weapon — a Colt revolver — from the floorboard and used the keys found on Alexander to start the car. The officers subsequently found the car's registration and a seat belt citation in the car's glove compartment. The former indicated that the car was registered to Alexander, while the latter indicated that Alexander had received a citation while driving the Buick on April 6, 2000. Both documents listed Alexander's address as 253 16th Street, S.E., Washington D.C., which is located approximately 10 to 14 blocks from 723 12th Street, N.E.

Based on the foregoing events, Alexander was indicted on November 2, 2000 and charged with three counts: one count of unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1); one count of threatening to kidnap, injure or physically damage, in violation of D.C.Code § 22-2307; and one count of tampering with a witness, victim or informant, in violation of 18 U.S.C. § 1512(b)(1). At trial, the district court granted Alexander's motion for judgment of acquittal on the tampering charge at the close of the government's case-in-chief. On February 8, 2001, the jury acquitted Alexander of the threat charge and, the next day, convicted him of the felon-in-possession charge. After denying Alexander's motion for a new trial, the district court sentenced him to 180 months of incarceration, pursuant to 18 U.S.C. § 924(e)(1), followed by five years of supervised release. Alexander now appeals, challenging both his conviction and, in the alternative, his mandatory minimum sentence.

II. Analysis

We address each of Alexander's challenges in turn.

A. The Excited Utterance

Alexander objected on hearsay grounds to the introduction of the 911 call and to Schaffrath's testimony regarding Young's subsequent statements at the scene. 2/6/01 Tr. 4-13. After conducting voir dires of Schaffrath, who testified for the government, and Young, who testified for Alexander, the district court ruled that the 911 call—but not Young's subsequent statements to Schaffrath—qualified as an excited utterance and, as such, fell within an established exception to the hearsay rule. Id. at 143-44. On appeal, Alexander renews his hearsay objection to the 911 call, arguing that the statements contained therein were not made while Young was under the stress of excitement caused by Alexander's alleged threat.

We review a district court's evidentiary rulings for abuse of discretion. United States v. Williams, 212 F.3d 1305, 1308 (D.C.Cir.), cert. denied, 531 U.S. 1056, 121 S.Ct. 666, 148 L.Ed.2d 568 (2000); see also United States v. Evans, 216 F.3d 80, 85 (D.C.Cir.) (inadmissible hearsay allegation reviewed under abuse of discretion standard), cert. denied, 531 U.S. 971, 121 S.Ct. 411, 148 L.Ed.2d 317 (2000). The district court's decision to admit evidence is therefore "entitled to `much deference' on review." United States v. Ramsey, 165 F.3d 980, 984 n. 3 (D.C.Cir.) (quoting United States v. Lewis, 693 F.2d 189, 193 (D.C.Cir.1982)), cert. denied, 528 U.S. 894, 120 S.Ct. 223, 145 L.Ed.2d 187 (1999).

Federal Rule of Evidence 803(2) creates a hearsay3 exception for "statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." FED.R.EVID. 803(2).4 The rationale underlying the "excited utterance" exception is that "excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable." United States v. Brown, 254 F.3d 454, 458 (3d Cir.2001), cert. denied, 535 U.S. 944, 122 S.Ct. 1332, 152 L.Ed.2d 238 (2002); see also United States v. Joy, 192 F.3d 761, 766 (7th Cir.1999) ("This exception is premised on the belief that a person is unlikely to fabricate lies (which presumably takes some deliberate reflection) while his mind is preoccupied with the stress of an exciting event."), cert. denied, 530 U.S. 1250, 120 S.Ct. 2704, 147 L.Ed.2d 974 (2000). Thus, to qualify as an excited utterance, "the declarant's state of mind at the time that the statement was made [must] preclude[] conscious reflection on the subject of the statement." Joy, 192 F.3d at 766.

For a statement to qualify as an excited utterance, the proponent of the exception must establish: (1) the occurrence of a startling event; (2) that the declarant made the statement while under the stress of excitement caused by the event; and (3) that the declarant's statement relates to the startling event. See, e.g., Brown, 254 F.3d at 458; Joy, 192 F.3d at 766.5 Yet, unlike the hearsay exception for present sense impressions, FED.R.EVID. 803(1), "[a]n excited utterance need not be contemporaneous with the startling event to be admissible," United States v. Tocco, 135 F.3d 116, 127 (2d Cir.), cert. denied, 523 U.S. 1096, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998). "Rather, the utterance must be contemporaneous with the excitement engendered by the startling event." Joy, 192 F.3d at 766.6

Although the lapse of time between the startling event and the declarant's statement is relevant to whether the declarant made the statement while under the stress of excitement, the temporal gap between the event and the utterance is not itself dispositive. See United States v. Jones, 299 F.3d 103, 112 (2d Cir.2002). Other relevant factors include: the characteristics of the event; the subject matter of the statement; whether the statement was made in response to an inquiry; and the declarant's age, motive to lie and physical and mental condition. See United States v. Marrowbone, 211 F.3d 452, 454-55 (8th Cir.2000). If the trial court has access to a recording of the declarant's statement, it may also consider the declarant's "tone and tenor of voice" in determining whether the declarant made that statement while under the stress of excitement. United States...

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