Pressey v. State

25 A.3d 756 (2011)

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Nature of the Case

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Facts

Seventeen-year-old Anthony Calm was walking home when three men approached him. All three men were wearing black-and-white checkered scarves and pointing guns at Calm. They robbed Calm of his cell phone, house key, school identification card, and cash. Two of the men then walked away. The third man stayed and robbed Calm of the coat, pants, and boots that he was wearing. That man then directed Calm to sit on a nearby step. Calm complied. When the third man was out of sight, Calm ran home. Calm's sister answered the door. Calm told his sister and mother that he had been robbed. Calm's mother, recalled that Calm was 'scared,' 'hysterical,' and 'crying.' The mother left the house in search of the perpetrators. She encountered Wilmington Police Detective Michael Ballard and Wilmington Police Officer Brian Vettori in their vehicle. She 'frantically' informed them of the robbery and then continued to drive in search of the robbers. Ballard and Vettori followed. She then observed a man walking down the street. She exited her car and told Ballard and Vettori that the man was one of the robbers. The police chased the man down. The man that Ballard and Vettori took into custody was D. D was wearing a black-and-white checkered scarf. Ballard and Vettori discovered several items on D's person, including a cell phone, Calm's school identification card, and Calm's house key. Vettori called Calm's cell phone number, and the cell phone that was discovered on d's person rang, with Vettori's number displayed on the caller ID. The mother returned to the house and then drove Calm to the scene of the arrest to identify the assailant. Calm had put on a T-shirt and sweatpants because the robber had left him in only his boxers and socks. Calm testified that he was 'in shock,' 'nervous,' 'upset,' and 'shaken up' at that time. The mother also testified that Calm was 'still shook up, scared.' Calm stayed in the car and 'put his hood on, slouched down where he couldn't be seen.' The mother recalled that Calm was 'still crying' and appeared 'scared.' The mother and Vettori testified that Calm identified D as one of the robbers. The time from when Calm was robbed to the time that he identified D was between twenty and sixty minutes. D was charged by indictment with Robbery in the First Degree, Conspiracy in the Second Degree, and Resisting Arrest. The State nolle prossed the Conspiracy in the Second Degree count. The matter then proceeded to a jury trial. Several witnesses testified at the trial, including Calm, Wallace, Ballard, and Vettori. During the prosecutor's direct examination of the mother, defense counsel objected: “They are going to ask [Wallace, the mother] whether [Calm] identified D as the person who robbed him . . . . I think that's clearly hearsay.' The court held that the availability of the declarant is immaterial. Therefore, if the State can lay a foundation that this was indeed an excited utterance, whether or not the questions were asked of [Calm] is irrelevant. And if you can lay that foundation I am going to admit the statements as excited utterances. The mother testified that Calm was 'scared,' 'still crying,' and 'slouched down' and that he 'didn't want to get out of the car' when he identified D as one of the robbers. The trial judge ruled that the prosecutor had laid a sufficient foundation. The mother then testified that Calm identified D as one of the robbers. D objected to Vettori testifying on the same grounds but it was admitted. Vettori testified that Calm 'was seated in the back seat of the car,' 'appeared to be nervous,' was 'shaking,' and 'his voice was shaky.' D was convicted and appealed.