United States v. Glenn
Decision Date | 30 January 1973 |
Docket Number | No. 71-1865.,71-1865. |
Citation | 473 F.2d 191 |
Parties | UNITED STATES of America, Appellant, v. James GLENN, a/k/a James M. Green. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Philip L. Cohan, and Raymond Banoun, Asst. U. S. Attys., were on the brief for appellant.
Mr. Ed Wilhite, Washington, D. C. (appointed by this Court), was on the brief for appellee.
Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
The appellee Glenn was indicted for the murder of one Juanita Johnson by stabbing her with a knife. Before trial he moved to suppress a statement made by Juanita Johnson minutes after she received the fatal wound and within an hour of her death. After a hearing the District Court granted the motion to suppress. The United States appeals, pursuant to 18 U.S.C. § 3731 (1970) and 23 D.C.Code § 104(a)(1) (Supplement V, 1972). We reverse.
The record establishes without contradiction that Glenn and Juanita Johnson lived together in an apartment at 3407 Sherman Avenue, N.W., in Washington, D.C. Between nine and ten o'clock on the morning of the homicide, August 26, 1970, a neighbor heard them "arguing" and heard Glenn tell Juanita Johnson to "get out". Then they "quieted down" and both left the apartment. Juanita Johnson returned at about one o'clock in the afternoon and around four o'clock the argument resumed. In a loud voice Glenn again told Juanita Johnson to "get out, get out" and Mrs. Johnson said "Glenn, why don't you leave me alone?". Glenn and Mrs. Johnson then "ran down the hall" and the neighbor heard the back door slam.
The testimony of Officer Kalinofsky, Desk Sergeant at No. 10 Precinct, was that he saw Juanita Johnson "lunge toward" Officer Jackson and then talk to him, but Kalinofsky did not hear the conversation. He stated that Mrs. Johnson was excited, appeared to be looking for help, and was gasping for breath. He noticed "a small amount of blood on her left breast". After she was helped to a chair he saw her "go limp and lean forward in her chair" and he then called for an ambulance. The ambulance took Mrs. Johnson to the hospital where she was pronounced dead at 5:14 P.M.
A person walking from the bedroom at 3407 Sherman Avenue to the counter at No. 10 Precinct would travel no more than 502 feet.
Dr. William James Brownlee, Deputy Medical Examiner for the District of Columbia, who performed an autopsy on Mrs. Johnson, testified that she had two significant wounds, one in front and one in the back, both involving the chest. The stab wound in the back produced major bleeding into the right chest from the intercostal artery and vein, causing her lungs to collapse and her heart to shift. The doctor concluded that Mrs. Johnson was in pain from her wounds and knew that she was very seriously injured, but he could not say that she believed death was imminent. He added that "I do not feel the majority of people feel they are going to die".
In the doctor's opinion Mrs. Johnson "probably died within half an hour or 45 minutes from the time of the infliction of the wound"; at the most she would not have survived more than an hour and a half.
Dr. Brownlee testified that the autopsy disclosed the presence of "0.28 miligram percent of alcohol" in Juanita Johnson's blood. Although he testified that a normal person would have to consume ten ounces of whiskey in one hour to reach this percentage, he explained that Mrs. Johnson was not a normal person. He found that she was obese, suffering from arthritis of the kidneys, and that she displayed all the metabolic signs which are found in a chronic alcoholic. He concluded that as a "chronic user" she had a tolerance for alcohol and certainly would not lose consciousness at the level found in her blood; on the contrary, he said that such a percentage is "not highly extensive in a major alcoholic". His opinion was that notwithstanding the alcohol in her blood Mrs. Johnson would have been able to perceive that Glenn, with whom she was living, had stabbed her in the chest and in the back, and that she was capable of giving a correct answer if asked who had stabbed her.
The stipulated testimony of the police officers who observed Mrs. Johnson at the stationhouse was that she was weak, gasping for breath and apparently in pain but that she did not appear to be drunk. She did not smell of liquor, her speech was not slurred and she responded quickly and coherently to questions.
On this record the District Court held that Mrs. Johnson's statement at the precinct was not admissible, either as a dying declaration or as a spontaneous or "excited" utterance. The court based its ruling on several factors: 1. Mrs. Johnson did not believe at the time that her death was imminent; 2. the court was "not 100 percent certain" that she was in a state of shock; 3. there was a lapse of time between the infliction of the fatal wounds and the making of the statement; and 4. the alcohol in Mrs. Johnson's blood made her statement "unreliable and suspect".
Declarations relating to the circumstances of a violent crime, made by the victim shortly after its occurrence, are sometimes admitted in evidence as exceptions to the hearsay rule, upon the theory that the shock of the injury and the excitement of the moment have produced an utterance that is spontaneous and sincere as distinguished from one engendered by deliberation and design. Such statements may be admissible although made in response to an inquiry. Guthrie v. United States, 92 U.S.App.D.C. 361, 207 F.2d 19 (1953); Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939). Nor is it decisive that an appreciable time elapsed between the infliction of the injury and the making of the statement. United States v. Kearney, 136 U.S.App.D.C. 328, 420 F.2d 170 (1969); Guthrie v. United States, supra. The decisive factor is that the circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection. Whether this conclusion is justified depends upon the facts of each case and must be determined by the District Court in the exercise of sound judicial discretion. Such discretionary action is of course subject to review and must be reversed if clearly erroneous.
On the facts of this case we think the District Court was clearly in error since Mrs. Johnson's statement was plainly admissible as a spontaneous utterance.
From the testimony of Dr. Brownlee that Mrs. Johnson probably died within half an hour or 45 minutes after she had been stabbed, and the proof...
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