Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M. Hannon, Trial Judge)
Before Rogers, Chief Judge, and Schwelb, Associate Judge, and Belson, Senior Judge.
The opinion of the court was delivered by: Rogers
Rogers, Chief Judge: Appellant James M. Jackson appeals his conviction by a jury of possession with intent to distribute phencyclidine (PCP) and possession with intent to distribute marijuana, D.C. § 33-541 (a)(1) (1988 Repl.) on the grounds that the trial Judge abused his discretion by suppressing various out-of-court statements against interest made by an unavailable witness. We affirm.
Three uniformed police officers, who were inside a parked, private van, saw a car stop by parking with a tire on the curb in the 1600 block of North Capitol Street around 7:30 p.m. on July 2, 1986. After three men got out of the car, the driver began removing plastic bags from the trunk that he gave to the other two men. As the police officers approached the car, one of the men yelled "police," and the three men ran. A subsequent search of the car revealed nine plastic packets containing PCP-laced marijuana, a jacket with a tin foil packet of PCP-laced marijuana in the pocket, and a black wallet with two identification cards with appellant's picture. Officer Jacobs identified appellant's picture as being that of the driver of the car.
During a pre-trial hearing, a defense witness, Philip Hobbs, waived his Fifth Amendment privilege and testified that he was in a car in the 1600 block of North Capitol Street around 7:30 p.m. on July 2, 1986. According to Hobbs, he got out of the car and "went into the trunk" where he knew there was a brown paper bag containing "some packets of PCP." The Judge advised Hobbs that he could be charged with the crimes to which he was admitting, and informed him of the penalties he could face if convicted. Hobbs indicated that he still wished to waive his Fifth Amendment rights. The next day when Hobbs failed to appear in court, the Judge issued a bench warrant for his arrest.
At the Conclusion of the government's case-in-chief, defense counsel asked the trial Judge for permission to introduce evidence of out-of-court declarations against interest which Hobbs had allegedly made to other persons. The Judge concluded that Hobbs' other out-of-court declarations against interest were inadmissible because they lacked trustworthiness. However, the trial Judge permitted the introduction of a stipulation setting forth Hobbs' testimony during the pre-trial hearing. *fn1
The defense called appellant's mother as a witness. She testified that she often allowed Hobbs to use her car so that he could take appellant, her son, to work. Furthermore, she recalled allowing Hobbs to use the car on July 2, 1986, "so could take to work that evening."
The defense also called Mr. Smith and Mr. Manning. They testified that they were in appellant's mother's car during the July 2nd incident, and that Hobbs had driven the car to North Capitol Street, exited on the driver's side, and then removed drugs from the trunk of the car. Smith testified that Hobbs had stopped the car earlier that night on Staple Street where he had met a man who had escorted him into an alley. According to Smith, Hobbs thereafter emerged from the alley carrying a brown bag that he placed in the car trunk.
In Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc), the court held that "a statement tending to expose declarant to criminal liability and offered as tending to exculpate the accused is admissible when the declarant is unavailable and corroborating circumstances clearly indicate the trustworthiness of the statement." Id at 199 (adopting Fed. R. Evid. 804 (b)(3)) (emphasis in original). The rule the court adopted in Laumer "requires that the trial Judge undertake a three-step inquiry to ascertain (1) whether the declarant, in fact, made a statement; (2) whether the declarant is unavailable; [ *fn2] and (3) whether corroborating circumstances clearly indicate the trustworthiness of the statement." Id. This court "will not disturb the trial court's findings unless they are clearly erroneous. See D.C. Code 1973, § 17-305(a)." Id. at 203.
Both parties acknowledge that the trial Judge never inquired into whether Hobbs, the declarant, had in fact made the incriminating statements to other persons. However, the government maintains that this is of no import because the Judge's ruling that the statements were inadmissible as untrustworthy can be viewed as assuming that the statements were made. However, the record would appear to present two problems with this approach. First, there is nothing in the record to indicate that the Judge considered the relevant factors. *fn3 Second, the Judge based his Conclusion about untrustworthiness, at least in part, on a presumption that is contrary to Laumer *fn4 Furthermore, the record indicates that the trial Judge may have frustrated defense counsel's attempt to present evidence of corroborating circumstances of the out-of-court declarations. *fn5
Nevertheless, we are satisfied that any error in applying Laumer was harmless. Kotteakos v. United States, 328 U.S. 750, 765 (1946). Although Hobbs' out-of-court statements against interest to others were not admitted into evidence, Hobbs' testimony at the pre-trial hearing was admitted. Thus, from Hobbs' testimony, the jury knew that Hobbs admitted being in appellant's mother's car on the evening in question, knew about the drugs in the trunk, and went into the trunk after the car stopped on North Capitol Street. According to the defense proffer, the only additional information that would have been provided by the other witnesses is that Hobbs told them that "he had possession of . . . drugs taken from an individual who owed him money, he put them in the , and he was going to pass them out once he got over to the 1600-block of North Capitol Street." The defense witnesses at trial provided this information to the jury. Smith testified that he saw Hobbs enter an alley with a man, come out with a brown bag and put the bag in the trunk. This testimony, in connection with the fact that the controlled substances were found in a brown paper bag in the trunk of the car, suggests that Hobbs may have acquired the controlled substances from a man on the street. Furthermore, the testimony of Smith and Manning that Hobbs drove them to the 1600 block of North Capitol and began handing out the controlled substances suggests that Hobbs intended to pass drugs out at the 1600 block of North Capitol Street. Hearsay testimony that Hobbs also conveyed in words what his conduct already suggested would have been cumulative.
The defense witnesses at trial -- Smith, Manning, and appellant's mother -- put Hobbs at the scene, made him culpable for the crimes with which appellant was charged and exculpated appellant. Hence, the exclusion of the out-of-court declarations ...