STEADMAN, Associate Judge.
During a search of Floyd Woodfolk's home, police found a 9 mm semiautomatic Luger ("Tech 9") with a loaded magazine in a white plastic bag near Woodfolk's bedroom. In test-firing the gun to determine operability, it was discovered that the magazine found in the gun was defective in that it failed to properly feed bullets into the chamber of the gun; however, when a new properly functioning magazine was inserted, the gun readily fired multiple rounds.
The jury found Woodfolk guilty of possession of a prohibited weapon (machine gun) in violation of D.C.Code § 22-3214(a); possession of an unregistered firearm in violation of D.C.Code §§ 6-2311(a) and 6-2376; and unlawful possession of ammunition in violation of D.C.Code §§ 6-2361 and 6-2376.
Before us are cross-appeals. The government challenges the trial court's legal interpretation of the statutory definition of a machine gun, as applied to the facts here. Woodfolk challenges the trial court's evidentiary ruling admitting as an excited utterance the 911 tape of the telephone call from Woodfolk's girlfriend which led to the police search.
On May 25, 1991, at 9:48 a.m., a woman named Wendy Carter called 911 from a house in Southeast D.C. Ms. Carter told the dispatcher that she would like to have police sent to her boyfriend's house, because she wanted to leave. When the dispatcher asked whether Ms. Carter's boyfriend wouldn't let her go, Ms. Carter responded, "No—he, he owns a gun." She answered yes when the dispatcher asked if she had seen the gun. The dispatcher then asked, "So he has a gun on you?" and Ms. Carter replied, "He's here and he owns a gun. I want to leave and I'm scared he might do something to me." She identified her boyfriend as Floyd Woodfolk, and when the dispatcher asked for a description, Ms. Carter said, "... could you please hurry?" The dispatcher then relayed the information to several police officers, who responded to the call.
When the police arrived, Ms. Carter met them at the front door. She was wearing bedroom attire and appeared to be scared and nervous. Ms. Carter asked the officers to find the gun and led them down to the basement. When they got downstairs, the officers saw Woodfolk lying in bed, in a makeshift bedroom area that was partially partitioned off from the rest of the room. The room contained a crib for the couple's baby, who was in the home, and there was a large amount of women's clothing strewn about. After a continued search of some minutes, following various suggestions of Ms. Carter, the officers found the white bag, inside of which was the gun, containing a magazine loaded with 18 rounds of 9 mm ammunition, near the bedroom area under the rear of the interior steps leading down into the basement.
On October 9, 1991, Officer David Proulx test-fired the gun, using the magazine that had been recovered from Woodfolk's home. Officer Proulx found that the weapon was operable in the sense that it could fire a single bullet, but that the magazine would not feed properly for semi-automatic repetition. He concluded that the magazine probably had a bent lip.
A few days later, Officer Walter Dandridge of the firearms section of the Criminal Investigations Division performed a second test-fire of the gun. In order to complete this test, Officer Dandridge removed the magazine that was found with the gun, and used another magazine made for that type of weapon, which was in the firearms section's collection. Officer Dandridge fired the gun for 13 consecutive shots without reloading. He testified at trial that there was no question that the gun was capable of firing 13 rounds when it was equipped with a magazine that functioned properly.
D.C.Code § 22-3214(a) outlaws the possession of certain specified weapons, including "any machine gun."
We cannot agree that as a matter of law, a magazine must be deemed an integral part of a machine gun so that the "expertise" test of Curtice is determinative.
Congress enacted D.C.Code § 22-3214(a) in 1932, prohibiting the mere possession of certain weapons, "to enforce drastically a prohibition against carrying particularly dangerous weapons within the District of Columbia." Worthy v. United States, 420 A.2d 1216, 1218 (D.C.1980). The legislative intent was to strengthen the existing law and tighten controls over the possession of dangerous weapons. United States v. Parker, 185 A.2d 913, 914 (D.C.1962). We explained the legislature's rationale by stating that "[t]he weapons listed in subsection (a) are so highly suspect and devoid of lawful use that their mere possession is forbidden." Worthy, supra at 1218 (citing United States v. Brooks, 330 A.2d 245, 247 (D.C.1974)).
Similarly, we looked at the legislature's intent when we interpreted a D.C. statute that required registration of all firearms within the District, outlawed possession of unregistered firearms, and specifically stated that registration certificates could not be issued for machine guns.
It is true that the registration statute in Fesjian defines a machine gun as "any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot... semiautomatically more than 12 shots without manual reloading." D.C.Code § 6-2302(10). This is a fuller definition than that contained in § 22-3201(c) and could lead to different results in particular cases. See Townsend v. United States, 559 A.2d 1319 (D.C.1989) (unregistered pistol missing firing
We observe that the 1932 Act imposing the flat ban on possession of machine guns also contained a provision barring the carrying of a pistol without a license, now appearing as D.C.Code § 22-3204. We have construed that provision as requiring proof that the pistol in question be "operable." Anderson v. United States, 326 A.2d 807 (D.C.1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975).
In sum, we think the legislative intent here was to focus on the core components of what in common parlance constitutes a "machine gun." See Lee v. United States, 402 A.2d 840, 841 (D.C.1979) ("a firearm is by common usage a device capable of propelling a projectile by explosive force" (emphasis added)). Analogies can be dangerous, but the situation here might be likened to, say, a statute that banned outright the possession of a "camera." If a person were found in possession of a camera with a defective film canister, we think the statute nonetheless could be fairly construed to have been violated. For the reasons set forth above, we conclude a similar analysis applies here. "We cannot, therefore, rule as a matter of law that the [weapon] in this case did not fall within the proscription of [§ 22-3214]. The question was [at the very least] properly left to the jury." Rouse v. United States, supra, 391 A.2d at 792.
The trial judge admitted the 911 tape into evidence as an excited utterance. The admissibility of a spontaneous utterance is committed to the sound judicial discretion of the trial court, and we will reverse only if the ruling is clearly erroneous. Alston v. United States, 462 A.2d 1122, 1128 (D.C.1983). In order for a statement to qualify as an excited utterance, there must be (1) a startling event which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a sufficiently short period of time after the occurrence to ensure that the declarant did not reflect upon the event and possibly invent a statement, and (3) circumstances which in their totality suggest spontaneity and sincerity of the remark. Price v. United States, 545 A.2d 1219, 1226 (D.C.1988).
We may assume for present purposes that the mere making of the statement itself cannot alone serve as sufficient evidence of the occurrence of a startling event.
As we have often noted, "[c]ircumstantial evidence may be equally as probative as direct evidence." Gayden v. United States, 584 A.2d 578, 579 (D.C.1990), cert. denied, 502 U.S. 843, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991). Here, the trial court was presented with far more than a disembodied abstract statement. To the contrary, much was known and could be inferred about the surrounding circumstances. The trial court, in finding that the 911 tape constituted
Accordingly, the entry of a judgment of acquittal on the count of possession of a prohibited weapon is vacated and the case remanded to the trial court with instructions to enter a judgment of conviction on that count upon the verdict of the jury and to impose appropriate sentencing. The other convictions are affirmed.
Appellant's argument that Ms. Carter's statements on the phone could not have been an excited utterance, since some of her statements were in response to questions from the dispatcher, is meritless. See Young v. United States, 391 A.2d 248, 250 (D.C.1978).