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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 threats1and, 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,6there 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 seventeenminute 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”;9the 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 selfinterest 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

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DISTRICT OF COLUMBIA

COURT OF APPEALS

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No. 13-CF-1295

----------------

ANTOINE MAYHAND, Appellant,

 v.

UNITED STATES OF AMERICA, Appellee.
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