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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-FS-0588
IN RE M.W., APPELLANT.
Appeal from the Superior Court of the District of Columbia (2022-DEL-000993)
(Hon. Robert A. Salerno, Trial Judge)
(Argued January 30, 2025 Decided May 7, 2026)
Amy Phillips, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the briefs, for appellant.
Anne A. Deng, Assistant Attorney General, for appellee the District of Columbia. Brian L. Schwalb, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Dia Rasinariu, Assistant Attorney General, were on the briefs for appellee.
Before MCLEESE, DEAHL, and SHANKER, Associate Judges.
MCLEESE, Associate Judge: Appellant M.W., who is a juvenile, appeals from
a judgment finding him responsible for attempted murder and related offenses.
M.W. challenges the trial court’s exclusion at trial of evidence of two hearsay
statements. We affirm. 2
I. Factual and Procedural Background
A. The District’s Evidence at Trial
The evidence at trial included the following. M.W.’s mother, who was driving
a gray Jeep, and Nira Monk, who was driving a dark blue Nissan, parked near each
other in a parking lot outside of a store on Howard Road, S.E. M.W. was a passenger
in the car his mother was driving. Ms. Monk was accompanied by her boyfriend,
Bernard Boyd, and her children. M.W.’s mother and Ms. Monk got into an
argument. M.W. and Mr. Boyd became involved in the argument. According to Ms.
Monk, M.W. was very combative. Mr. Boyd believed that M.W. had a gun at the
time of the argument because Mr. Boyd saw M.W. go to the car’s trunk and fidget
with his hand near his hip. During the argument, Officer Shaun Freeman was
standing a few feet away.
The groups eventually returned to their cars and left the parking lot. M.W.
rode in the passenger seat of the car his mother was driving. Ms. Monk’s car went
out of the parking lot first and turned right onto Howard Road. M.W.’s mother’s car
left the parking lot immediately after and turned left onto Howard Road.
At the time that the cars left the parking lot, the Metropolitan Police
Department received a ShotSpotter alert for three shots at the store’s location. 3
Surveillance videos depicting the argument and the cars leaving the store were
introduced into evidence at trial.
The District of Columbia’s theory of the case was that M.W. had shot at
Ms. Monk’s car from the passenger seat as the car his mother was driving left the
parking lot. Ms. Monk testified that when she turned out of the parking lot, she
immediately heard gun shots and saw the Jeep speed away in the opposite direction.
Ms. Monk believed that she heard about five shots because she later found “about
five” bullet holes in the back of her car. The bullet holes had not been there before
the incident.
Mr. Boyd heard four to five gunshots immediately after Ms. Monk’s car pulled
out of the parking lot. He saw a muzzle flash coming from the passenger side of the
Jeep and felt debris brush across his face. Once he got home after the incident, Mr.
Boyd saw four bullet holes in the back of Ms. Monk’s car.
About five to six minutes after the shooting, Officers Anthony Gramieri and
Nesseem Mekhael arrived on the scene. The officers located three shell casings on
Howard Road, to the left side of the exit from the store’s parking lot. 4
Mr. Boyd and Ms. Monk did not report the incident to the police on the night
it occurred, because Ms. Monk and her children were “shaken up.” Ms. Monk
reported the incident the following day.
Ms. Monk was impeached with prior convictions for conspiracy to commit
second-degree arson, relating to a plan to set Ms. Monk’s car on fire for insurance
money; and second-degree fraud, for having written her name on someone else’s
check.
Mr. Boyd was impeached with several convictions for armed robbery, among
other offenses. Mr. Boyd was also impeached on the ground that the absence of
damage to the interior of the car was not consistent with his testimony that he felt
debris hit his face.
B. The Defense’s Attempts to Admit Hearsay Statements
M.W.’s theory of the case was that someone in Ms. Monk’s car fired the
gunshots, and the bullet holes in Ms. Monk’s car either preexisted or were later
created with a purpose of committing insurance fraud. Defense counsel attempted
to support that theory by introducing evidence of hearsay statements made by
Arrington Archie, an uninvolved third party who was near the scene at the time of
the incident. Video from Officer Mekhael’s body-worn camera (BWC) shows that 5
about six minutes after the shooting, Officer Gramieri asked Mr. Archie if he heard
anything. Mr. Archie responded that he was right in front of “it,” that a car drove
up the street, and that “it was the Black Nissan Altima.”
Defense counsel subpoenaed Mr. Archie, but Mr. Archie initially did not
appear at trial. At the start of trial, M.W.’s counsel moved to introduce the video of
Mr. Archie’s statement to Officer Gramieri as a present sense impression. After
reviewing the BWC video, the trial court sustained the District’s objection,
explaining that the trial court could not tell who was talking, where the conversation
was, or what the conversation was about.
The following day, defense counsel renewed the motion to admit the video,
which the trial court again denied. Defense counsel then moved to admit the
“statements from Mr. Archie” as excited utterances, proffering that in a portion of
Officer Gramieri’s BWC video that the trial court had not yet received, Officer
Freeman stated that Mr. Archie came over to Officer Freeman and said that Mr.
Archie also heard the shots and saw a black car shooting. According to defense
counsel, in this portion of the video, Officer Freeman stated, “I heard gunshots, and
then the gentleman over there [pointing in direction of the Eyewitness] came and
told me [unintelligible] he saw a black car shooting at the ground.” Defense counsel
described this statement as “perhaps an even closer in time statement” and proposed 6
calling Officer Freeman as a witness. The trial court declined defense counsel’s
offer to send chambers the additional BWC video, stating, “It’s not going to work,
okay, because for all the reasons I said the last time. Number one, we don’t know
who this person is. We don’t know where it is. We don’t know when it is. We
don’t know anything about this declarant.” After defense counsel offered to proffer
additional facts relating to the additional BWC footage, the trial court stated that the
trial court would need more than “simply the clip itself” to determine whether the
video was admissible as either an excited utterance or a present sense impression.
Defense counsel then called Officer Gramieri to testify, to try to lay a
foundation for the admission of the additional BWC video. Officer Gramieri
testified that he spoke with Mr. Archie within the first few minutes of being on the
scene, that he believed Mr. Archie was close by at the time of the incident, and that
Officer Freeman had also told Officer Gramieri about an earlier conversation with
Mr. Archie. According to Officer Gramieri, Mr. Archie seemed calm when speaking
to Officer Gramieri.
After questioning Officer Gramieri, defense counsel renewed the request to
admit “the eye witness’[s] statement” as an excited utterance. The trial court denied
this motion, stating that there was nothing in the record from which the court could
find the absence of reflection sufficient for admission as either a present sense 7
impression or an excited utterance. The trial court emphasized Officer Gramieri’s
testimony describing Mr. Archie’s demeanor at the time of the statement to Officer
Gramieri as calm.
Defense counsel filed a motion to reconsider the admissibility of “the
proffered statements (both to Officer Gramieri and to Officer Freeman)” as an
excited utterance. After Mr. Archie appeared in court pursuant to a material-witness
warrant, defense counsel suggested that the motion to reconsider be tabled until after
Mr. Archie’s testimony. The trial court declined to table the motion to reconsider
and instead denied the motion, “rul[ing] for the fourth time that it’s inadmissible
substantive evidence.”
C. The Defense Evidence at Trial
Mr. Archie testified that he saw a black Nissan driving very fast and heard a
gunshot that landed about an inch from his foot as he crossed Howard Road. When
asked whether he saw what direction the gunshots were coming from, Mr. Archie
testified that he did not. Mr. Archie testified that he briefly spoke with Officer
Freeman within “probably” two minutes of the incident. When defense counsel
asked Mr. Archie if he saw the Nissan shooting at the ground, Mr. Archie said no
and denied having told Officer Freeman otherwise. 8
Defense counsel then called Officer Freeman to impeach Mr. Archie’s
testimony. Officer Freeman testified that he was on duty at the store in question at
the time of the incident. Mr. Archie told Officer Freeman that he saw a black car
shooting at the ground. The trial court ruled that this testimony could be used solely
to impeach Mr. Archie’s testimony.
D. Remand of the Record
M.W. argues on appeal that Mr. Archie’s statements to Officers Freeman and
Gramieri should have been admitted into evidence both as excited utterances and as
present sense impressions. After oral argument, this court remanded the record for
the trial court to further consider and explain its ruling that Mr. Archie’s statement
to Officer Freeman was not admissible as a present sense impression.
On remand, the trial court issued an order explaining its conclusion that Mr.
Archie’s statement to Officer Freeman was not admissible as a present sense
impression. Specifically, the trial court acknowledged that although Mr. Archie
testified at trial that his conversation with Officer Freeman occurred within
“probably” two minutes of the shooting, it was possible that the conversation
occurred sooner. The trial court noted, however, that M.W. bore the burden of
establishing the admissibility of the evidence and concluded that M.W. had failed to 9
establish that the statements were “made at the time of the incident or immediately
thereafter, such that they may be considered spontaneous.”
This court directed supplemental briefing, and the case is now ripe for
decision.
II. Analysis
Hearsay evidence is generally inadmissible at trial, but there are exceptions to
that general rule. E.g., Jones v. United States, 17 A.3d 628, 632 (D.C. 2011). This
case involves two of those exceptions: the present-sense-impression exception and
the excited-utterance exception. We review for abuse of discretion a trial court’s
ruling as to whether a hearsay statement is admissible as a present sense impression
or an excited utterance. Sims v. United States, 213 A.3d 1260, 1266 (D.C. 2019)
(present sense impression); Mayhand v. United States, 127 A.3d 1198, 1205 (D.C.
2015) (excited utterance). More specifically, we review the trial court’s factual
determinations for clear error, pure determinations of law de novo, and application
of law to facts with deference. Mayhand, 127 A.3d at 1205. We hold that the trial
court did not abuse its discretion in excluding the statements at issue in this case. 10
A. Present Sense Impression
To be admissible as a present sense impression, a statement must “describ[e]
or explain[] events which the declarant is observing at the time [the declarant] makes
the declaration or immediately thereafter.” Hallums v. United States, 841 A.2d
1270, 1276 (D.C. 2004). The trial court must be assured, by a preponderance of the
evidence, that (1) the declarant personally perceived the event being described,
(2) the declarant made the statement contemporaneously, and (3) the statement was
made in circumstances that were “truly spontaneous,” rather than “involv[ing]
conscious reflection, recall from memory, or even intentional deception.” Sims, 213
A.3d at 1266-67 (citation modified).
1. Statement to Officer Freeman
In ruling that Mr. Archie’s statement to Officer Freeman was not admissible
as a present sense impression, the trial court did not express concern as to the
requirement that the declarant have personally observed the event being described.
Rather, the trial court expressed concerns about (1) the passage of approximately
two minutes between the event and Mr. Archie’s statement; and (2) whether Mr.
Archie’s statement was made spontaneously. We hold that the trial court reasonably
viewed those concerns as warranting exclusion of Mr. Archie’s statement to Officer
Freeman. 11
Although the word “present” in the title of the exception seems to imply that
present sense impressions would be limited to statements that describe what the
declarant is perceiving at the precise moment the statement is made, we (like other
courts) have not interpreted the exception so narrowly. See, e.g., Hallums, 841 A.2d
at 1276 (present-sense-impression exception can apply to statements about what
declarant is perceiving that are made either “at the time” or “immediately
thereafter”). We take as a given for current purposes that the passage of
approximately two minutes between the shooting and Mr. Archie’s statement was
not by itself fatal to the admissibility of the statement as a present sense impression.
The passage of such a period of time, however, certainly opens up the possibility
that Mr. Archie’s statement was not “truly spontaneous” but instead was the product
of “conscious reflection [or] recall from memory.” Sims, 213 A.3d at 1266 (citation
modified).
In the present case, M.W. provided little other information about the
circumstances of Mr. Archie’s conversation with Officer Freeman. Mr. Archie
testified at trial that he spoke with Officer Freeman for about thirty seconds, and that
the “conversation consiste[d] of” him asking if the officer had heard “that,” and the
officer saying, “yes.” Officer Freeman testified at trial that Mr. Archie described
seeing a black car shooting at the ground. M.W. did not proffer or present any other
information about circumstances that would have gone to whether Mr. Archie’s 12
statement was “truly spontaneous,” such as whether Mr. Archie’s statement was
volunteered or instead was prompted by a question from Officer Freeman and what
Mr. Archie’s demeanor was like at the time the statement was made. See generally,
e.g., United States v. Boyce, 742 F.3d 792, 797-98 (7th Cir. 2014) (explaining that
“answering questions rather than giving a spontaneous narration could increase the
chances that the statements were made with calculated narration”).
The lack of any additional information, other than the brief period of time
involved, going to whether Mr. Archie’s statement was spontaneous is notable,
because M.W. had multiple opportunities to provide such additional information:
when examining Mr. Archie at trial, when eliciting testimony from Officer Freeman
at trial, and when proffering information to the trial court on remand.
We hold that the trial court acted within its discretion in declining to admit
Mr. Archie’s statement to Officer Freeman as a present sense impression given the
passage of time between the shooting and the statement and the absence of any other
information shedding light on whether Mr. Archie’s statement was spontaneous. Cf.
State v. Dessinger, 958 N.W.2d 590, 601 (Iowa 2021) (holding that child’s
nonverbal demonstration made several minutes after event was not present sense
impression because child “was describing past events at the request of a third party.
There was nothing spontaneous about it.”). M.W. bore the burden of establishing 13
the admissibility of the statement, and we hold that the trial court reasonably
concluded that M.W. did not carry that burden.
We are not persuaded by M.W.’s arguments to the contrary. First, M.W.
argues that the trial court committed a clear error of fact on remand in finding that
Mr. Archie’s statement to Officer Freeman was made “approximately two minutes”
after the shooting. In support of that argument, M.W. relies on (1) Mr. Archie’s trial
testimony that Mr. Archie spoke with Officer Freeman within “probably” two
minutes of the shooting; and (2) evidence that M.W. proffered on remand in support
of the possibility that the conversation could have taken place less than two minutes
after the shooting. We see no clear error. Although the trial court could have relied
on the evidence proffered by M.W. on remand to infer that the statement was made
less than two minutes after the shooting, the trial court was not compelled to draw
that inference. We hold that the trial court reasonably found that Mr. Archie’s
statement to Officer Freeman was made approximately two minutes after the
shooting.
Second, M.W. argues that the exception for present sense impressions has
only two requirements—personal knowledge and contemporaneity—not three. We
disagree. This court’s cases have repeatedly identified spontaneity as a distinct
component of the test for admission of present sense impressions. See, e.g., Sims, 14
213 A.3d at 1266-67 (to qualify as present sense impression, statement must reflect
contemporaneity, spontaneity, and personal knowledge); Mayhand, 127 A.3d at
1209 n.13 (“Both the hearsay exception for present sense impressions and excited
utterances require a showing of spontaneity . . . .”); Gardner v. United States, 898
A.2d 367, 374 (D.C. 2006) (“Statements sought to be admitted under the present
sense impression exception to this general rule must have been made spontaneously
and contemporaneously with the events described.”) (citation modified); Hallums,
841 A.2d at 1277 (“In recognizing a hearsay exception for present sense impressions,
however, we note that care must be taken to ensure that this exception is not used to
admit statements that circumstances reveal were not truly spontaneous, but instead
involved conscious reflection or recall from memory.”).
Third, M.W. argues that the trial court erroneously treated the passage of time
between the shooting and Mr. Archie’s statement to Officer Freeman as dispositive.
We do not read the trial court’s ruling that way. Although the trial court did place
substantial emphasis on the passage of time, the trial court also noted the requirement
of spontaneity and pointed out that M.W. had the burden of establishing
admissibility.
Fourth, M.W. relies on this court’s decision in Smith v. United States, 26 A.3d
248 (D.C. 2011), which M.W. describes as having held that a statement was 15
admissible as a present sense impression. To the contrary, we held in Smith only
that “the trial court should have attempted to determine whether [the statement] was
admissible as a present sense impression.” Id. at 260.
Finally, M.W. relies on decisions from other jurisdictions either admitting or
upholding the admission of statements as present sense impressions in circumstances
that M.W. argues are comparable to those of the present case. It is true that some of
the cases cited by M.W. admitted or upheld the admission of statements as present
sense impressions in circumstances comparable to the circumstances of this case.
Those cases, however, are not binding on this court. Moreover, the question for this
court is not whether the trial court could permissibly have exercised its discretion to
admit Mr. Archie’s statement to Officer Freeman as a present sense impression.
Rather, the question is whether the trial court abused its discretion in declining to
admit the statement on that ground. “Appellate decisions upholding a given exercise
of discretion do not necessarily establish that a different exercise of discretion would
be impermissible.” Workman v. United States, 255 A.3d 971, 978 (D.C. 2021).
2. Statement to Officer Gramieri
M.W. also argues that the trial court erred in not admitting Mr. Archie’s
subsequent statement to Officer Gramieri as a present sense impression. We
conclude to the contrary. 16
Mr. Archie’s statement to Officer Gramieri was made about six minutes after
the shooting and was in response to a question. The grounds for admitting the
statement as a present sense impression thus are weaker than the grounds for
admitting Mr. Archie’s statement to Officer Freeman. It follows that the trial court
also did not err in concluding that Mr. Archie’s statement to Officer Gramieri was
not admissible as a present sense impression.
B. Excited Utterance
For a statement to be admissible as an excited utterance, the party seeking
admission of the statement must show:
(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 [that] in their totality suggest spontaneity and sincerity of the remark.
Mayhand, 127 A.3d at 1205 (citation modified).
As already noted, the record contains very little information about the
circumstances of Mr. Archie’s statement to Officer Freeman. See supra at 12. The
statement was given within approximately two minutes of the shooting, and there 17
was evidence suggesting that the statement was made during a brief conversation
and was in response to a question. Id. We have no information about whether the
incident actually put Mr. Archie into a state of “nervous excitement or physical
shock,” what Mr. Archie’s demeanor was during the statement, whether the
statement appeared to be “premeditated or constructed,” or whether there were any
other circumstances suggesting “spontaneity and sincerity” of the statement.
Mayhand, 127 A.3d at 1205 (citation modified). We conclude that the trial court
acted well within its authority to determine that M.W. had not carried the burden of
establishing that the statement qualified as an excited utterance. The absence of
evidence about Mr. Archie’s mental state at the time of the statement by itself
warranted exclusion of the statement. See, e.g., Mayhand, 127 A.3d at 1206-08
(reversing trial court’s admission of statement as excited utterance because, among
other things, there was no evidence that declarant was “actually distraught, in shock,
or in a state of nervous excitement at the time” of statement, and statement therefore
did not satisfy first requirement of excited-utterance exception) (citation modified).
We are not persuaded by M.W.’s arguments to the contrary. First, M.W.
argues that the trial court should have considered the BWC footage of Mr. Archie’s
later statement to Officer Gramieri when deciding on the admissibility of the
statement to Officer Freeman. As previously noted, supra at 5-8, the trial court ruled
on the request to admit the statements at issue multiple times. It thus is not entirely 18
clear what the trial court ended up considering on the issue. In any event, we have
reviewed the BWC footage, and we conclude that it supports rather than contradicts
Officer Gramieri’s testimony that Mr. Archie seemed calm when he made the
statement to Officer Gramieri. See generally, e.g., Gabramadhin v. United States,
137 A.3d 178, 183-84 (D.C. 2016) (notwithstanding obligation to defer to trial court,
court of appeals concluded after listening to recording of 911 call that tone and
contents of call were “not consistent with a determination that [the declarant] was so
upset that she was unable to reflect or was speaking reflexively”). We think it clear
that consideration of the BWC footage would have only provided further support for
the trial court’s ruling.
Second, M.W. notes that at one point the trial court declined M.W.’s offer to
make a proffer. It is unclear whether that proffer related to Mr. Archie’s statement
to Officer Freeman or to Mr. Archie’s statement to Officer Gramieri. In any event,
although we do not approve of the trial court’s refusal at that moment to hear a
proffer, we note that M.W. had many opportunities thereafter during the trial to make
clear what M.W. wished to proffer. Moreover, M.W. (1) subsequently called Mr.
Archie and Officer Freeman as witnesses; and (2) made a proffer to the trial court
on remand based on an interview with Mr. Archie. At no point has M.W. concretely
explained what he hoped to proffer at trial but was unable to present that would have 19
meaningfully supported a conclusion that Mr. Archie’s statement was admissible as
an excited utterance.
We uphold the trial court’s ruling that Mr. Archie’s statement to Officer
Gramieri was not admissible as an excited utterance for essentially the same reasons
we have upheld the trial court’s similar ruling as Mr. Archie’s statement to Officer
Freeman. The statement to Officer Gramieri was further removed in time from the
shooting, and there was direct evidence that Mr. Archie was calm when that
statement was made. We see no basis upon which the trial court could properly have
admitted that statement as an excited utterance.
For the foregoing reasons, we affirm the judgment of the Superior Court.
So ordered.