Saturday, July 23, 2011
Triple Play: D.C. Court Of Appeals Reverses Murder Conviction Based Upon 3 Serious Error By Trial Court
Federal Rule of Evidence 806 provides that
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
The District of Columbia does not have codified rules of evidence, but as the recent opinion of the District of Columbia Court of Appeals in Smith v. United States, 2011 2899126 (D.C. 2011) (Download Smith v. United States), makes clear, it has adopted the Rule in case law, and the trial court's failure to adhere to the Rule led to a reversal of the defendant's conviction.
In Smith, Damon Smith was found guilty of second-degree murder while armed, possession of a firearm during a crime of violence, carrying a pistol without a license, unlawful possession of ammunition, and possession of an unregistered firearm, in connection with the March 2004 shooting death of Bradley Gant. At trial, Laura Brown, who had known both Smith and Gant since elementary school, testified, inter alia, that she
saw that Smith and Gant were "hav[ing] some words" and punching each other. Smith eventually ran away, at which point Brown noticed that Gant's shirt was wet with blood from a wound on his left hip. Brown told the jury that she went into the house to call an ambulance, and when she came back outside a few minutes later, Gant said: "[H]e cut me," meaning Smith. Smith's counsel objected on hearsay grounds to Gant's statement, but the trial court admitted it as an excited utterance. Brown also testified that she lied when she spoke to the emergency dispatchers. She told them that she "w[as] just walking past [Gant] ... [and saw] him sitting on the steps." Brown also provided an incorrect address for the location of the fight, claimed not to know what had happened to Gant, did not mention Smith, and tried to minimize her role because she did not want "to be involved in anything."
During his case,
Smith tried to call MPD Detective McCloud, who responded to Brown's 911 call after the stabbing and questioned Gant before Gant was taken away in an ambulance. According to Smith's counsel's proffer, Gant told Detective McCloud "that he was approached by six or seven black men" and that he "ha[d] no idea who stabbed him." In response to the prosecution's hearsay objection, Smith's counsel argued that she was offering Detective McCloud's testimony to impeach Brown. The trial court held that Smith could not "use what Bradley Gant told [Detective McCloud] to impeach [Brown] because it's not [Brown's] statement you are impeaching....What impeaches [Brown] is if she says two different things or if Bradley Gant says two different things. You can't use two different people saying two different things to impeach one another." Smith's counsel later faxed to the trial court additional arguments for why Gant's statement to Detective McCloud was admissible, including that it was an exception to the hearsay rule as an excited utterance and a present sense impression. The trial court dispensed quickly with the excited utterance argument: "I don't think it's excited utterance. To me it's testimonial, you are telling the police who stabbed you. You're certainly not telling them so they won't get them. That's exactly why you are telling them, so they can be prosecuted." The trial court also rejected Smith's argument that the statement was a present sense impression: "I don't think you are offering this as [a] present sense impression. You are offering this that your man didn't do it. It was six or seven other black men that did it....[You] are trying to get it in for the truth of the matter asserted therein." Because the trial court refused to let Smith ask Detective McCloud about Gant's statement to her, the jury never heard that Gant said he "ha[d] no idea who stabbed him."
After he was convicted, Smith appealed, and the District of Columbia Court of Appeals found that the trial court committed three fundamental errors which, in addition to other errors, required reversal.
First, the trial court deemed McCloud's prospective testimony about Gant's statement inadmissible because it was "testimonial," i.e., because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington. But as the District of Columbia Court of Appeals correctly noted, the Confrontation Clause only applies to statements introduced against an accused, not statements introduced by an accused, meaning that the trial court erred.
Second, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible because Smith was offering it to prove the truth of the matter asserted. Again, the District of Columbia Court of Appeals correctly concluded that this merely meant that Gant's statement was hearsay, not that it failed the test to qualify as a present sense impression, and exception to the rule against hearsay.
Third, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible to "impeach" Gant. The District of Columbia Court of Appeals correctly held that
If Gant had been alive to testify at trial that Smith stabbed him, Detective McCloud's testimony certainly would have been admissible to impeach him....Gant did not testify, of course, but once the trial court admitted his earlier statement to Brown, Gant became "in essence, [a] witness[ ], and should [have] be[en] treated as such for credibility purposes."....According to Federal Rule of Evidence 806, an out-of-court declarant's "'credibility should in fairness be subject to impeachment and support as though he had in fact testified.'"..."While this jurisdiction has not adopted the Federal Rules of Evidence, this court will look to those rules for guidance,"...and we hold that the trial court erred by refusing to permit Smith to use Detective McCloud's testimony to impeach Gant.