Criminal Law Blog

I'm NOT So Excited: Twelve-Minute 911 Call, During Which Caller Patiently and Rationally Answered Questions, Not Admissible as an "Excited Utterance"

Matthew Gabramadhin v. United States (decided April 28, 2016)

Players: Associate Judges Easterly and McLeese, Senior Judge Reid.  Opinion by Judge McLeese. PDS for Mr. Gabramadhin.  Trial Judge:  Russell F. Canan

Facts:  According to the complainant, M.H., Mr. Gabramadhin approached her as she was walking near Dupont Circle late one night.  He forced her into a nearby park where he assaulted her and stated that he wanted to have sex with her, but he eventually let her go.  M.H., a student at Georgetown, called the university's public safety department, spoke with an officer for several minutes, and was then transferred to a 911 operator, with whom she spoke for several more minutes.  M.H. stated during the call that she had been assaulted, answered numerous questions, and gave a description of her assailant.  M.H. testified that she was "very confused," "really afraid," and "could have been in shock" during this call.  A recording of the entire call was admitted at trial as an "excited utterance."

Mr. Gabramadhin gave a starkly different account of events.  He said that he and M.H. struck up a conversation, and went into a nearby park where they talked more and then began kissing.  M.H. eventually performed oral sex on him. Mr. Gabramadhin then told M.H. that he had a girlfriend, which made M.H. very angry and she followed him and shouted loudly that she hated him.

Issue:  Was the entirety of the 911 call admissible as an "excited utterance"?

Holding: No.  Several factors foreclosed a finding that M.H.'s statements during the call "were a 'spontaneous reaction to the exciting event' rather than 'the result of reflective thought.'"  First, the call lasted 12 minutes, and "lengthier statements are less likely to reflect spontaneity and lack of reflection."  Second, M.H. gave "detailed," "rational," and "patient" answers to questions during the call.  Third, M.H. initiated the call.  Fourth, upon a review of the recording, "the tone and contents of the call are consistent with a determination that M.H. was upset, but they are not consistent with a determination that M.H. was so upset that she was unable to reflect or was speaking reflexively."  Based on these combined factors, the call should not have been admitted as an excited utterance.

The error was not harmless in "a closely contested case that turned almost entirely on the respective credibility of M.H. and Mr. Gabramadhin."  The call went to the central issue at trial (consent), and the physical evidence and other testimony gave some support to both sides.  Although nothing in the call added information that was not in M.H.'s trial testimony, "the statements in the call might well have been more persuasive to the jury because of their temporal proximity to the incident and the level of detail they contained."  Finally, the call was a major feature of the prosecution case, and was both played for the jury and discussed during the government's closing argument.

Although the trial court had ruled that portions of the call were admissible as a present sense impression or statements of prior identification, the Court would not affirm on that basis.  Neither the trial court nor the government had identified the specific portions of the call that would have been admissible under either exception.  The government also mentioned these alternative hearsay exceptions only in a footnote in its brief, without providing specific legal or factual argument.  "In the absence of specific findings from the trial court and adequate briefing from the United States, we are unable to rely on these alternative hearsay exceptions as bases upon which to conclude that the erroneous admission of the call as an excited utterance was harmless."

Of Note:

  • For appellate practitioners, the Court's harmless-error analysis holds a lot of promise.  The government's case was not weak, and the 911 call did not contain any information that was not already before the jury.  But the Court properly explains why, in a close case where credibility was key, the 911 call was prejudicial.
  • The Court's refusal to address whether portions of the call were admissible under alternate theories is also notable.  Both the government and the trial judges often reference multiple hearsay exceptions without much elaboration.  The Court emphasizes that the proponent of hearsay bears the burden of establishing an applicable exception and specific findings are required.  DG

Read full opinion here.