Antoine Mayhand v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-1295

ANTOINE MAYHAND, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-9023-2013)

(Hon. Stuart G. Nash, Trial Judge)

(Argued February 4, 2015 Decided July 9, 2015)

Abram J. Pafford for appellant.

Kristina Ament, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, with whom
Elizabeth Trosman, Elizabeth H. Danello, and Peter C. Lallas, Assistant United
States Attorneys, and Susan M. Simpson, Special Assistant United States Attorney,
were on the brief, for appellee.

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

EASTERLY, Associate Judge: This case began when Christopher Ballard

called 911. In an ensuing seventeen-minute “reasonable conversation” between

Mr. Ballard and a 911 operator that the trial court found was “fairly level and
 2

coherent and balanced,” but “perhaps mask[ed] . . . [Mr. Ballard’s] emotional

agitation,” Mr. Ballard accused Antoine Mayhand of threatening to stab him. Mr.

Mayhand was charged with threats1 and, because Mr. Ballard was due to testify

against Mr. Mayhand’s brother in another case, obstruction of justice.2

Mr. Ballard did not testify at trial, and the government successfully argued

that the entirety of his 911 call was admissible as an excited utterance and present

sense impression. This recording was the only evidence the jury heard of Mr.

Mayhand’s alleged criminal conduct. The jury acquitted Mr. Mayhand of threats

but convicted him of obstruction of justice. Mr. Mayhand makes multiple

arguments on appeal, but we need only address two: his challenge to the

sufficiency of the evidence and his argument that the accusatory portions of Mr.

Ballard’s 911 call were improperly admitted because they did not fall within the

excited utterance exception to the rule against hearsay.3

1
D.C. Code § 22-1810 (2012 Repl.).
2
D.C. Code § 22-722 (a)(4) (2012 Repl.).
3
Mr. Mayhand also argues that the remainder of the 911 call should not
have been admitted as a present sense impression, that the entirety of the call was a
testimonial statement that triggered his Sixth Amendment right to confrontation,
and that an anti-deadlock instruction given to the jury was coercive.
 3

We conclude that the evidence presented at trial was sufficient to convict

Mr. Mayhand of obstruction of justice, but we determine that reversal is required

because the evidence of a threat used to obtain that conviction was inadmissible

hearsay that should not have been presented to the jury. Specifically, the trial court

improperly admitted as excited utterances the parts of Mr. Ballard’s 911 call that

the government needed to prove obstruction—the statements in which Mr. Ballard

calmly reported to the operator that Mr. Mayhand had, at some unspecified prior

time, threatened to stab him. Mr. Ballard’s out-of-court accusations fail all three

elements of our test for the admission of excited utterances and fall well outside

the bounds of this limited exception to the rule against hearsay.

Again, we issue words of caution regarding the limited scope of this

exception, which “is designed to protect litigants from judgments based on

unreliable second-hand evidence which is not subject to cross-examination.”

Odemns v. United States, 901 A.2d 770, 777 (D.C. 2006). Our restrictions on the

use of hearsay are no more to be avoided by determinations that the declarant who

appeared outwardly calm suffered hidden inner turmoil than by “rote recitations

that the declarant was upset or excited or afraid.” See id. In other words, a

statement is not an excited utterance unless the declarant is manifestly overcome

by excitement or in shock. Moreover, the contemporaneousness of the statement
 4

with the exciting event and the related “critical requirement of spontaneity,” id.,

must be given equal and careful consideration. Lastly, the totality of the

circumstances must be scrutinized for indicia of self-awareness and reflection that

are inconsistent with the “immediate and uncontrolled domination of the senses”

necessary to establish an excited utterance. Id. at 778 (quoting Alston v. United

States, 462 A.2d 1122, 1126 (D.C. 1983)).

I. Facts

The foundation of the government’s case was the 911 call Mr. Ballard

placed on the morning of May 28, 2013. A recording of the call was made

available to this court as part of the record. The government also provided this

court with a transcript,4 which we have attached to this opinion as Appendix A.

The 911 call lasted seventeen minutes and included four specific assertions

by Mr. Ballard that, at some unspecified earlier point in time, Mr. Mayhand had

threatened to stab him. The statements are: (1) at minute 1:22, “[h]e said he was

going to pull a knife on me, and stab me”; (2) at minute 2:11, “[h]e said, ‘I should

4
The transcript was prepared by the government, but appellant does not
object to its contents.
 5

pull a knife on you and stab your bitch ass’”; (3) at minute 2:27, in response to a

question from the operator asking where the knife was: “I have no idea, he said I

should pull this knife on you . . .”; and, (4) at minute 6:15, “[n]o, I have not seen

any weapons, but he said, ‘I should pull a knife on you and stab your bitch ass.’”

The remainder of the call is a narration of Mr. Ballard’s walk from Ivory

Walters Lane to the Denny’s on Benning Road, a distance of about ten blocks,

apparently with Mr. Mayhand in close proximity. Interspersed between updates on

his location, Mr. Ballard gives the 911 operator descriptions of himself and of Mr.

Mayhand, as well as explanations of his involvement in the case against Mr.

Mayhand’s brother. The recording also includes long periods of silence, some

lasting over a minute. A few times, Mr. Ballard can be heard shouting angrily at

someone, presumably Mr. Mayhand. At one point, Mr. Ballard tells the operator

that Mr. Mayhand is “charging” him, and then shouts, “[t]hat’s why he’s gonna do

fifteen years! The police is on the line, what you gonna do? Bring it on!” But

nothing appears to come of the “charging”; Mr. Ballard immediately provides

another update on his location and informs the operator that Mr. Mayhand is “just

standing there looking at me now.” The call ultimately terminates after the police

arrive and Mr. Ballard is heard making contact with them.
 6

The police arrested Mr. Mayhand, and he was charged with threats and

obstruction of justice. Prior to trial, the government moved for a ruling on the

admissibility of the recording of Mr. Ballard’s 911 call. Over the defense’s

objection, the court ruled that the government could play the entire call for the

jury. The court reasoned that “the bulk of it is a present sense impression” and that

“[t]he only part that does not get swept into that is the assertion about the threat

that had happened previous to the call.” But the court determined that “those

portions of the call can come in under the excited utterance exception to the

hearsay rule.”

The court explained:

People do get—well, certainly, as I said earlier, if
someone threatens to stab you with a knife and then
follows you for a period of blocks down the street; that is
an event that a reasonable person would—that a
reasonable person would find to be an exciting event that
would put them into a state of emotional agitation. So
that element I believe is satisfied.

The question is whether in this particular case Mr.
Ballard was put into—was, in fact, put into such a state
of emotional agitation. And I do find that he was. It is
true that his conversation with the 911 operator is fairly
level and coherent and balanced. He’s certainly not a
hysteric, screaming into the phone. Over a period of time,
engages in a reasonable conversation with the operator.
But people exhibit their emotional agitation in different
 7

ways. Not everyone gets hysterical. It does seem to me
that there is strain in his voice throughout the call.
Certainly he was concerned enough about the threat that
he did call the police and remained on the police—or the
entire 17 minutes it took for them to dispatch someone to
come to get him.

And I think most importantly, there are times during
those 17 minutes when apparently there is an exchange
between [Mr.] Ballard and [Mr.] Mayhand where he is
screaming at [Mr.] Mayhand. Clearly on those parts of
the call, he is emotionally agitated when he’s screaming
at [Mr.] Mayhand. But immediately after engaging in
this, he goes into the same conversational pattern with
the operator, goes back to his reasonable tone of voice.
And so it seems to me that he is making an effort to be
understood by the operator, to talk reasonably with the
operator and that is perhaps masking the submission of
his emotional agitation. He has the ability to do that. But
I do find that the agitation existed and was certainly
corroborated then by the observations of the officers
when he comes on the scene, that being in his—his head
is or his neck is pulsating and that he’s sweating
profusely, and that he articulates concern for his life
based on his interaction with Mr. Mayhand. So I do find
that throughout the call, while it’s not immediately
apparent from the conversational pattern of the
participants that [Mr.] Ballard was suffering from an
emotional agitation.

And I addressed temporal aspect earlier5 which is that in
my mind it’s not just the threat, but it’s the threat and the

5
The court had earlier preliminarily observed that

the temporal element is satisfied because it’s not just the
threat that would excite a state of nervous excitement in
the hearer. It is also being threatened and then being
followed down the street. And so in that sense, I think,
(continued…)
 8

following down the street that causes the emotional
agitation and that’s an ongoing stimulus that was
sufficient to make, in my mind, the entire 911 call an
excited utterance.

Aside from the recording of Mr. Ballard’s 911 call, the only other evidence

presented by the government at trial was the testimony of Officer Stephen Chih,

one of the police officers who responded to the 911 call. Officer Chih testified that

when he first arrived on the scene, Mr. Mayhand and Mr. Ballard were standing

“15, 20 feet” apart. Because Mr. Mayhand matched the description provided to

Officer Chih by the dispatcher, Officer Chih detained him. According to Officer

Chih, Mr. Mayhand responded by “yell[ing] some expletives,” calling Mr. Ballard

a “snitch,” and denying having done “anything [Mr. Ballard] said that I did.”

Officer Chih then interviewed Mr. Ballard, who was “trembling,” had “beads of

sweat on his face,” was “constantly looking over his shoulder,” was breathing

“quick[ly],” and had a visible “vein along his neck . . . pulsating very quickly.”

Based on this evidence, a jury convicted Mr. Mayhand of obstruction of

justice and acquitted him of making threats. This appeal followed.

(…continued)
there’s an ongoing event that would reasonably engender
a nervous excitement on the part of the victim. So the
temporal element, I believe, is satisfied.
 9

II. Analysis

A. The Sufficiency of the Evidence to Support Mr. Mayhand’s
Conviction for Obstruction of Justice

We first examine the sufficiency of the evidence and determine that, when

considering the improperly admitted 911 call, as we must,6 there was sufficient

evidence to support Mr. Mayhand’s conviction for obstruction of justice.

When a defendant challenges the sufficiency of the evidence, we “assess the

evidence in the light most favorable to the government, giving full play to the right

of the jury to determine credibility, weigh the evidence, and draw justifiable

inferences of fact.” Harrison v. United States, 60 A.3d 1155, 1161 (D.C. 2012)

(quoting Campos-Alvarez v. United States, 16 A.3d 954, 964 (D.C. 2011)). We

reverse a conviction for insufficiency “only where there is no evidence from which

a reasonable mind might fairly infer guilt beyond a reasonable doubt.” Id.

Mr. Mayhand argues that the government failed to prove a “nexus” between

the threats he allegedly made towards Mr. Ballard and any intent to prevent Mr.

6
See Thomas v. United States, 557 A.2d 599, 601 (D.C. 1989) (en banc)
(per curiam).
 10

Ballard “from testifying at the trial of Mr. Mayhand’s brother.” The crime of

obstruction does not require the government to present such proof, however. As

defined by D.C. Code § 22-722 (a)(4), the crime of obstruction is committed when

a defendant “[i]njures or threatens to injure any person . . . on account of the

person . . . giving to a criminal investigator in the course of any criminal

investigation information related to a violation of any criminal statute in” the D.C.

Code. The recording of the 911 call, in conjunction with testimony from Officer

Chih that Mr. Mayhand had called Mr. Ballard a “snitch,” a derogatory term for a

witness for the government, provided a sufficient basis for a reasonable fact-finder

to infer that Mr. Mayhand had threatened to injure Mr. Ballard and had done so

“on account of” the information Mr. Ballard gave to law enforcement during the

investigation of Mr. Mayhand’s brother.

The more troubling question is whether the government should have been

permitted to make the 911 recording the evidentiary core of its case. We turn to

that question now.
 11

B. The Admissibility of the Accusatory Portions of the 911 Call as
Excited Utterances

We focus on the admissibility of the accusatory portions of the 911 call—the

portions in which Mr. Ballard told the 911 operator that Mr. Mayhand had

threatened to pull a knife on him. If these statements were not admissible as

excited utterances, then it would not matter if the remainder of the seventeen-

minute 911 call were properly admitted as an excited utterance or a non-reflective,

present sense impression.7 Excised of Mr. Ballard’s report of Mr. Mayhand’s

alleged threat, the call would have been of little use to the government.

The test for admitting an out-of-court statement offered for the truth of the

matter asserted under the “excited utterance” exception to the rule against hearsay

is well established in this jurisdiction and has three parts. The proponent of the

statement must establish:

(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

7
See Hallums v. United States, 841 A.2d 1270, 1277 (D.C. 2004) (per
curiam) (“[S]tatements of present sense impression are considered reliable because
the immediacy eliminates the concern for lack of memory and precludes time for
intentional deception.”).
 12

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.

Odemns, 901 A.2d at 776. “In all cases the ultimate question is whether the

statement was the result of reflective thought or whether it was rather a

spontaneous reaction to the exciting event.” In re L.L., 974 A.2d 859, 865 (D.C.

2009) (quoting Price v. United States, 545 A.2d 1219, 1227 (D.C. 1988)).

Whether a statement constitutes an excited utterance “depends upon the facts

peculiar to each case,” Lewis v. United States, 938 A.2d 771, 775 (D.C. 2007), and

each element of the three-part test “must be met” before such a statement may be

admitted into evidence. See Melendez v. United States, 26 A.3d 234, 245 (D.C.

2011). The trial court “has the legal responsibility to examine the testimony and

determine whether the proper foundation has been laid” before deciding whether

the exception applies. Castillo v. United States, 75 A.3d 157, 162 (D.C. 2013)

(internal quotation marks omitted). We commit this decision to the trial court’s

“exercise of sound judicial discretion.” Odemns, 901 A.2d at 776 (quoting

Nicholson v. United States, 368 A.2d 561, 564 (D.C. 1977)). Accordingly, we

review the trial court’s fact-finding for clear error, and we review the court’s
 13

determination that these facts permit admission of a statement under the excited

utterance exception for abuse of discretion. Id. See also Castillo, 75 A.3d at 162.

Obviously, whether the trial court adheres to the test for the admission of hearsay

under this exception is a legal question and the trial court abuses its discretion

when it “rests its conclusions on incorrect legal standards.” Castillo, 75 A.3d at

162 (quoting In re J.D.C., 594 A.2d 70, 75 (D.C. 1991)). See also Simmons v.

United States, 945 A.2d 1183, 1187 (D.C. 2008) (stating that “[a] discretionary

ruling founded on a mistake of law” is “by definition” incorrect).8

8
The government cites (Martin A.) Brown v. United States, 27 A.3d 127
(D.C. 2011) (quoting Dutch v. United States, 997 A.2d 685 (D.C. 2010)), for the
proposition that we “afford[] de novo review” to the question of whether a
statement qualifies as an excited utterance. It is far from clear to us that this court
in Brown, by quoting Dutch (a case addressing the business record exception to the
rule against hearsay), meant to depart from a long line of precedent endorsing
review for abuse of discretion of the admission of hearsay under the excited
utterance exception. Indeed, Brown also quotes a passage from Odemns explicitly
endorsing review for abuse of discretion. Id. at 130-31. With that said, our review
for abuse of discretion does incorporate a de novo element to the extent that we are
considering conclusions of law encompassed in the trial court’s ruling, i.e., its
formulation of the three elements of this hearsay exception.
 14

1. Nervous excitement or physical shock

The first question for the trial court was whether Mr. Ballard had

experienced an exciting event that “generated a state of nervous excitement or

physical shock in the declarant.” Odemns, 901 A.2d at 776. The court determined

that being threatened and then followed by the individual who had issued the threat

would be “an exciting event that would put [a reasonable person] into a state of

emotional agitation”;9 the question in the court’s view was “whether in this

particular case Mr. Ballard was . . . in fact put into such a state of emotional

agitation.” It determined that he was, even though all outward signs indicated to

the contrary. In so doing, the court misapplied the first element of the excited

utterance test.

9
The court did not consider whether the uncorroborated out-of-court
statement proffered as an excited utterance could serve as the sole proof that an
exciting event had occurred. But see United States v. Woodfolk, 656 A.2d 1145,
1150 (D.C. 1995) (assuming that such bootstrapping would not be permitted and
that some corroborating evidence would be required); Brown v. United States, 152
F.2d 138, 140 (D.C. Cir. 1945) (“This exception to the hearsay rule has commonly
been applied only when there has been independent evidence of an exciting
event.”). We need not address this issue, as we determine that other elements of
the excited utterance test were not met.
 15

The trial court determined that Mr. Ballard was in a state of “emotional

agitation,” even as it acknowledged that Mr. Ballard’s “conversation with the 911

operator [wa]s fairly level and coherent and balanced”; that Mr. Ballard was

“certainly not a hysteric, screaming into the phone”; and that Mr. Ballard, “[o]ver a

period of time, engage[d] in a reasonable conversation with the operator.” Indeed,

the trial court found that Mr. Ballard was able to control his emotions: after

“screaming at [Mr.] Mayhand,” he had the “ability” to resume “his conversational

pattern with the operator” and “go[] back to his reasonable tone of voice.” Having

ourselves listened to the recording of the 911 call, we concur with the court’s

factual findings regarding Mr. Ballard’s outward emotional state. Those findings,

however, do not support a determination that Mr. Ballard was experiencing the

necessary “nervous excitement or physical shock,” Odemns, 901 A.2d at 776, to

support admission of his statements under the excited utterance exception to the

rule against hearsay.

The essential rationale of this hearsay exception is that statements made

while a person is overcome by excitement or in shock are fundamentally

trustworthy. The theory at least is that the wash of excitement blocks the reflection

and calculation that could produce false statements:
 16

[A] person making an exclamation or a statement while
under the influence of the excitement or shock caused by
witnessing or participating in an extraordinary event,
such as a murder or a serious accident, is unlikely to
fabricate an untruth, but, on the contrary, has a tendency
to disclose what is actually on his mind. The mental
stress and nervous strain preclude deliberation and bar
reflection. Declarations made while the spell endures are
uncontrolled. They are practically reflex actions and may
be said to be verbal photographs or images of the
contents of the brain. Such utterances are likely to be
made without any calculation as to their potential effect
and without regard to their possible consequences. They
are apt to be the truth as the person knows it.
Consequently, it is safe to accept testimony as to
expressions of this type, even in the absence of an
opportunity to cross-examine the person who gave vent
to them. These considerations form the underlying
reason for this exception to the hearsay rule.

Odemns, 901 A.2d at 778 n.6 (emphases in original).10 See also Alston, 462 A.2d

at 1126 (“Since this utterance is made under the immediate and uncontrolled

domination of the senses, and during the brief period when considerations of self-

interest could not have been brought fully to bear by reasoned reflection, the

10
As we acknowledged in Odemns, 901 A.2d at 778 n.7, “the entire basis
for the [excited utterance] exception is, of course, subject to question” in light of
studies showing that heightened levels of stress may impede accurate perception
and recall. See id. (“While psychologists would probably concede that excitement
minimizes the possibility of reflective self-interest . . . , they have questioned
whether this might be outweighed by the distorting effect of shock and
excitement.”); Hallums, 841 A.2d at 1276 (noting that “a state of excitement may
impair the accuracy of the declarant’s power of observation”).
 17

utterance may be taken as particularly trustworthy.” (quoting Beausoliel v. United

States, 107 F.2d 292, 294 (D.C. Cir. 1939))); FED. R. EVID. 803 (1), (2) advisory

committee note (“[C]ircumstances may produce a condition of excitement which

temporarily stills the capacity of reflection and produces utterances free of

conscious fabrication.”).11

The trial court’s findings regarding Mr. Ballard’s “reasonable” demeanor

while speaking to the 911 operator establish that Mr. Ballard did not experience

this sort of suspension of cognitive function in his seventeen-minute telephone call

with the 911 operator. See Alston, 462 A.2d at 1127 (“[W]hen the declaration

consists of a calm narrative of a past event, it loses the character of a spontaneous

utterance.”). Cf. Odemns, 901 A.2d at 777 (stating that the excited utterance

exception is meant “to apply to situations in which the declarant was so excited by

the precipitating event that he or she was still under the spell of its effect” at the

time of speaking) (internal quotation marks omitted).

11
We have previously relied on the Federal Rules’ explanation of the
excited utterance exception as a basis for our use of the same. See Brisbon v.
United States, 894 A.2d 1121, 1126 n.15 (D.C. 2006); Reyes-Contreras v. United
States, 719 A.2d 503, 507 (D.C. 1998); Smith v. United States, 666 A.2d 1216,
1221 n.7 (D.C. 1995). Cf. Hallums, 841 A.2d at 1276 (relying on the official
comment to FED. R. EVID. 803 (1) and (2) (present sense impressions and excited
utterances, respectively) to justify adopting the exception for present sense
impressions).
 18

We acknowledge the court’s finding that it detected “strain” in Mr. Ballard’s

voice, but mere vocal strain or indication of some anxiety is insufficient in this

context. Again, because our aim is to ensure that an individual’s powers of

reflection have been suspended, we require a much higher level of emotional upset

to support the admissibility of a hearsay statement as an excited utterance. Alston,

462 A.2d at 1127 (stating that only when “there is evidence that the declarant was

highly distraught and in shock at the time the statement was uttered, [is] an

adequate showing as to the first element . . . made”). Accord. Castillo, 75 A.3d at

161-63 (first prong satisfied where declarant was “really upset” and “pacing

around and screaming”); Melendez, 26 A.3d at 245 (declarant was “very scared,

excited, nervous, and cold, tired, very shocked, greenish, and “very upset”)

(internal quotation marks omitted); Teasley v. United States, 899 A.2d 124, 128-29

(D.C. 2006) (declarant “spoke in an excited tone, mumbled to himself, and didn’t

have the wherewithal to provide his license plate number”) (internal quotation

marks omitted); Bryant v. United States, 859 A.2d 1093, 1100 (D.C. 2004)

(declarant was “crying, shaking and very distraught”).12

12
The court also looked to the fact that Mr. Ballard was “concerned enough
about the threat” to remain on the phone for seventeen minutes as evidence that
Mr. Ballard was experiencing the requisite “emotional agitation,” but that rational
action itself reflects deliberative thought, not an “immediate and uncontrolled
domination of the senses,” Alston, 462 A.2d at 1126, or a “reflexive response to a
traumatic event.” Clarke v. United States, 943 A.2d 555, 558 (D.C. 2008).
 19

Nor did the trial court’s reliance on Mr. Ballard’s after-the-fact excitement

when speaking to Officer Chih fill the evidentiary gap. Even where we have

determined that a declarant actually made initial statements under the influence of

excitement or shock, we have declined to extend the excited utterance exception to

later emotional retellings of the stressful incident. As we explained in In re L.L.,

“[t]here is a difference between the stress or excitement caused by the original

event and that caused by the trauma of having to retell what happened after

initially calming down. Only the former is admissible as an excited utterance.”

974 A.2d at 864 (internal quotation marks omitted). Certainly where, as here, Mr.

Ballard was not initially overcome by excitement and was not in shock, the fact

that he later became excited and distraught when he met with the officers who had

been dispatched to his aid is immaterial; his subsequent demeanor cannot relate

back to his earlier “rational,” “balanced,” “reasonable” statements and infuse them

with that same excitement.

In fact, the court appeared to recognize that the evidence of Mr. Ballard’s

outward demeanor, at the time he made his accusatory statements, was insufficient.

It thus determined that Mr. Ballard was “perhaps masking . . . his emotional

agitation” such that it was “not immediately apparent from the conversational

pattern of the participants that [Mr.] Ballard was suffering from an emotional
 20

agitation.” But to the extent the court relied on its assessment that Mr. Ballard was

“masking” his excitement, the court misconstrued this first element of the excited

utterance test.

An individual who is “under the immediate and uncontrolled domination of

the senses,” see Alston, 462 A.2d at 1126, should not be able to “mask” or

otherwise control his emotional state. Indeed, the exercise of such control is

precisely the type of deliberative cognitive function that the first element of the test

for the admission of excited utterances is supposed to screen out. Thus, by

determining that a declarant of an excited utterance may “mask” the very

symptoms that we require to justify the admission of a statement under this hearsay

exception, the court effectively negated the first element of the excited utterance

test.

Because there was no indication that Mr. Ballard was actually “distraught, in

shock, or in a state of nervous excitement at the time” he made his accusatory

statements to the 911 operator, the trial court “had no basis, in the existing

evidence, to find that the first element [of the excited utterance exception] had

been satisfied.” Walker v. United States, 630 A.2d 658, 666 (D.C. 1993).
 21

2. Contemporaneity and spontaneity

Turning to the second element of the excited utterance exception—that the

statement be made “within a reasonably short period of time after the occurrence,

so as to ensure that the declarant had not had time to reflect on the statement or

premeditate or construct it,” Odemns, 901 A.2d at 776—we determine that the

court’s findings were both insufficient and unsupported by the record.

The contemporaneity and spontaneity element of the excited utterance test,

though “not controlling, . . . is of great significance.” Castillo, 75 A.3d at 164

(emphasis in original) (quoting Odemns, 901 A.2d at 778). Like the “nervous

excitement or physical shock” element, it serves as reassurance that the declarant

could not reflect or deliberate before speaking. Clarke, 943 A.2d at 558

(explaining that “the earmarks of an excited utterance” are “spontaneity, lack of

reflection or forethought, [and] a reflexive response to a traumatic event”); Smith,

666 A.2d at 1223 (“The critical factor is that the declaration was 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.”)

(internal quotation marks omitted). The analysis of this element is fact-specific,

and “[t]he seriousness of the startling event is relevant to the determination of
 22

whether the utterance occurred within a reasonably short period of time . . . .” See

Castillo, 75 A.3d at 165. Although a highly shocking, violent, or serious event can

have a more lasting emotional effect, the law generally requires an excited

utterance to be more or less contemporaneous with the event that induced the

excitement. See Odemns, 901 A.2d at 779-81.13

The trial court needed to make a finding about the contemporaneity and

spontaneity of Mr. Ballard’s statement vis-à-vis the source of his stimulus. And to

do that, it needed to make a specific finding about the timing of the alleged threat

itself. But it did not do this. Rather, it appeared to assume that the alleged threat

closely preceded the 911 call and then found that the alleged following, in

conjunction with the recent threat, created an “ongoing” exciting event.

The trial court’s analysis is problematic for a number of reasons. To begin

with, there is no evidence in the record about when the alleged threats had actually

occurred, or how much time had passed before Mr. Ballard called 911. Although

13
Both the hearsay exception for present sense impressions and excited
utterances require a showing of spontaneity, see FED. R. EVID. 803 (1), (2) advisory
committee note (explaining that “[s]pontaneity is the key factor” for both present
sense impressions and excited utterances), but we allow a bit more temporal
flexibility with the latter exception, relying on the emotional element to “still[] the
capacity of reflection.” Id.
 23

Mr. Ballard repeated Mr. Mayhand’s threat to the 911 operator several times and

gave the operator a variety of other information, he never indicated when or where

Mr. Mayhand had allegedly threatened him.14 There having been no evidence

presented as to when the initial stimulus occurred, the court’s determination that

Mr. Mayhand’s continued presence during the 911 call was a source of “ongoing

stimulus” lacks foundation. Even assuming from the fact of the call that the

alleged threat had occurred immediately prior, Mr. Mayhand’s demeanor disproved

that the alleged threat in conjunction with Mr. Mayhand’s continued proximity

served as an “ongoing stimulus,” at least in the sense required for an excited

utterance, and should not have negated any temporal concerns. To be sure, more

than two minutes into the call, Mr. Ballard noted that Mr. Mayhand was following

him. But he provided this information matter-of-factly, and when asked whether

he was able to get himself to safety, he responded that he was “on a public street,”

suggesting that he felt no need to seek shelter. And in fact, he did not. He

continued his ten-block walk to the Denny’s on Benning Road, and he continued

his mostly calm conversation with the 911 operator.

14
At the end of the 911 call, Mr. Ballard is heard telling the officers who
responded that “[t]his man right here just now threatened me.” But, of course,
given that Mr. Ballard had just spent seventeen minutes on the phone with the 911
operator, the assertion that Mr. Mayhand had “just now” threatened Mr. Ballard
cannot be literally interpreted.
 24

In its brief, the government concedes that there is no evidence in the record

as to when the alleged threat occurred, but it argues that, based on Mr. Mayhand’s

testimony that he got up around 6:45 a.m. and the fact Mr. Ballard’s call was made

at 7:14 a.m., the alleged “threat against Ballard could not have been made more

than 30 minutes before Ballard’s 911 call.” The government further argues that

this limited window of time was “sufficient to support the admission of the 911

call as an excited utterance.” But this court does not analyze excited utterances in

such a categorical manner. There is no standard thirty-minute grace period for the

admission of excited utterances.15 Rather we must consider the particular facts of

this case.

Here, even if we assume that Mr. Ballard had an excitement-inducing

encounter with Mr. Mayhand just before he called 911, his calm demeanor on the

call, see supra at II.B.1, and his deliberate responses to questioning by the 911

15
In support of its argument that the alleged threat was close enough in time
to Mr. Ballard’s 911 call, the government cites to other cases where we stated that
statements made within a half hour of a disturbing event were admissible. But in
those cases the declarants not only experienced arguably more disturbing events
than the receipt of a verbal threat, but also were, unlike Mr. Ballard, actually
traumatized. See, e.g., Teasley, 899 A.2d at 128 n.3 (carjacking at gunpoint);
Reyes-Contreras, 719 A.2d at 505 (declarant had been punched “repeatedly” by
her husband); Young v. United States, 391 A.2d 248, 250-51 (D.C. 1978)
(declarant had been fatally stabbed).
 25

operator indicate that the intensity of any agitation he may have felt from his

alleged encounter with Mr. Mayhand was not lasting and did not prompt

spontaneous statements. Mr. Ballard did not excitedly blurt out that he had been

threatened as soon as he connected with the 911 operator. He first answered the

operator’s preliminary inquiries for his name and location. Almost a minute and a

half passed before Mr. Ballard told the operator that Mr. Mayhand had “said he

was going to pull a knife on me, and stab me.”16

A statement is not automatically disqualified from admission as an excited

utterance simply because it is made in response to questioning; however, a court’s

analysis must take into account the circumstances in which the statement is made.

See Reyes v. United States, 933 A.2d 785, 791 (D.C. 2007) (“The key inquiry is

whether the interview conducted was more deliberative in nature than

spontaneous.”) (internal quotation marks omitted)). If the declarant is still “under

the spell of the startling event,” a response to a government agent’s question may

yet qualify as an excited utterance. Id. But if, as here, the questions produce

deliberative and thoughtful answers, then the necessary element of spontaneity and

16
As he repeated this accusation at later points in the conversation (two
minutes into the call and then again six minutes into the call), the time between the
alleged threat and his report of the threat only grew.
 26

non-reflection is missing. Id. See also Odemns, 901 A.2d at 779 (finding a lack of

spontaneity where there was “no evidence that the declarant [when speaking to the

police] shrieked out her account, that she had lost her self-control, or that she was

unable to think or reflect. Rather, shaken and upset as she undoubtedly was, she

gave evidently responsive and rational answers to the detective’s questions”).

We thus conclude that the court had insufficient basis for its finding that the

statements alleging Mr. Mayhand’s prior threats were made spontaneously and

within a reasonably short time of a startling event.

3. The totality of the circumstances

The third and final element of the test for the admission of a hearsay

statement under the excited utterance exception is an assessment of whether the

“circumstances . . . in their totality suggest spontaneity and sincerity of the

remark.” Odemns, 901 A.2d at 776. The trial court did not address this element

explicitly or implicitly, but see Melendez, 26 A.3d at 245 (all “three elements must

be met” before an excited utterance may be admitted); but had the court done so,

this element could not have weighed in favor of admission of Mr. Ballard’s

statement.
 27

Apart from the fact that Mr. Ballard did not appear to be overcome by

excitement or in shock and that his proffered statement was neither

contemporaneous with a sufficiently exciting event nor spontaneous, any analysis

of the totality of the circumstances must take into account Mr. Ballard’s apparent

anger at Mr. Mayhand and his awareness that he was on the telephone, with the

police, reporting a crime. This was not a situation where the police, summoned by

a third party, arrived at the scene and encountered an individual wholly undone by

a traumatic incident.17 Here, Mr. Ballard had the wherewithal to call the police,

not merely to ask for help, but to document Mr. Mayhand’s criminal behavior and

to identify him to the police. He responded “reasonably” to all of the operator’s

questions for information about Mr. Mayhand and made sure to repeat Mr.

Mayhand’s threat multiple times. He remained on the line with the 911 operator

for seventeen minutes, and, in the midst of this conversation, he directed outbursts

at Mr. Mayhand, at one point yelling, “[t]he police is on the line, what you gonna

do?” This self-awareness is the antithesis of the mental state required to support a

17
See, e.g., Smith, 26 A.3d at 256 (where third party called 911, stabbing
victim’s statement to detective dispatched to the scene was an excited utterance);
Lewis, 938 A.2d at 774 (statement was an excited utterance when made by injured
and bloodied woman who the police encountered on the scene and who was very
emotional and very upset). Cf. Brown, 27 A.3d at 129, 134 (statements presumed
to be spontaneous where declarant, who had been badly beaten, leaving his head
“busted open,” was unable to “use the telephone receiver that was in his hand to
dial 911 or otherwise call for help”).
 28

determination that the declarant’s out-of-court statements were excited utterances.

Accordingly, we determine that the totality of the circumstances, like the first two

elements of the test for an excited utterance, do not support admission of Mr.

Ballard’s accusatory statements as spontaneous and non-reflective expressions of

the truth.

4. Harm

As the government proved none of the elements necessary to establish that

Mr. Ballard’s hearsay accusations were excited utterances, the trial court could not

reasonably have deemed these statements admissible under this exception to the

rule against hearsay. But that determination is only the first step of the abuse of

discretion inquiry. “[W]hen reviewing a trial court’s exercise of discretion,” this

court “must determine, first, whether the exercise of discretion was in error and, if

so, whether the impact of that error requires reversal. It is when both these

inquiries are answered in the affirmative that we hold that the trial court ‘abused’

its discretion.” Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979). To

assess the impact of the court’s incorrect ruling, we apply the test for
 29

nonconstitutional harmless error under the Kotteakos18 standard. See Odemns, 901

A.2d at 781-82. It is the government’s burden to show any error was harmless.

See Robles v. United States, 50 A.3d 490, 495-96 (D.C. 2012); Hobbs v. United

States, 18 A.3d 796, 801 (D.C. 2011).

The government has not made any argument that the admission of Mr.

Ballard’s hearsay was harmless. In any event, where this hearsay was the entirety

of the government’s evidence that Mr. Mayhand had threatened Mr. Ballard, the

only conclusion we can draw is that the jury’s judgment was substantially swayed

by the admission of this evidence.

Accordingly, we conclude that the trial court abused its discretion when it

admitted Mr. Ballard’s accusatory statements in his conversation with the 911

operator. Mr. Mayhand’s conviction must therefore be reversed.

So ordered.

18
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946) (allowing a court
to conclude an error was harmless if, “after pondering all that happened without
stripping the erroneous action from the whole, . . . the judgment was not
substantially swayed by the error.”).
 30

APPENDIX A

BRIEF FOR APPELLEE
----------------
DISTRICT OF COLUMBIA
COURT OF APPEALS
----------------
No. 13-CF-1295
----------------
ANTOINE MAYHAND, Appellant,
v.
UNITED STATES OF AMERICA, Appellee.
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