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District of Columbia Court of Appeals.

July 23, 1998



Before Schwelb, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge:

Appellant Dudley was found guilty by a jury of distribution of cocaine, possession with intent to distribute cocaine, and possession with intent to distribute marijuana. On appeal he challenges the refusal of the trial court to admit in evidence statements made by one of his codefendants, Antoinette Smith, at her aborted guilty plea proceeding and a similar statement Smith made to Dudley's attorney. Both statements purported to exculpate Dudley of the drug sale and purchase for which he and Smith were charged (Smith with simple possession only). We find no error in the trial court's exclusion of these statements, and affirm.

I. The facts

According to the government's proof, on August 15, 1993, two police officers concealed in an observation post saw Dudley's codefendants Smith and Freeman drive up in a car and stop near a group of people who were socializing and drinking. Smith got out of the car, approached a fence, and talked to [715 A2d Page 867]

Dudley. Dudley crossed the street, removed an object from the wheel well of a motorcycle trailer, returned to Smith at the fence, handed her the object, and received a different object from her. Smith returned to her car and drove off, but police stopped the car several blocks away. As they approached, they saw Smith throw what proved to be a bag of crack cocaine behind the seat, and saw Freeman attempt to conceal another bag of cocaine between the front seats. Freeman and Smith were arrested on drug charges, after which the officers returned to the group of socializers and arrested Dudley for selling drugs. They found 34 bags of crack and six bags of marijuana in the trailer wheel well.

II. Discussion

A. Prior cross-examined testimony.

Dudley's first contention relates to statements made by Smith at a proceeding in which she intended to plead guilty to the lesser included charge of attempted possession of cocaine. In return for reduction of the charged offense, Smith was expected to give an "insulating statement" under oath in which she described the events of the purchase and named Dudley as the seller. *fn1 The prosecutor asked Smith a few introductory questions and then whether, when she approached Dudley, she bought drugs from him. Smith answered "no" and explained that she sought out Dudley, whom she knew because their children played together, strictly to obtain change for a $10 bill at the request of a companion in her car. It was the companion, not Dudley, who purportedly gave her cocaine in return for her obtaining change. On hearing this testimony, the prosecutor told the court, "[W]e're not prepared to accept this insulating statement," and asked Smith no further questions. The court, recognizing that the plea had broken down, recessed the case to let Smith decide whether to plead guilty to the indictment. She later did so.

At Dudley's trial, after it was confirmed that Smith was unavailable as a witness (she had failed to appear for her sentencing), Dudley's counsel sought to introduce her statements at the aborted plea proceeding as prior cross-examined testimony. The trial judge ruled the statements inadmissible on that ground.

The proponent of the admissibility of prior testimony must demonstrate:

(1) that direct testimony from the declarant is unavailable; (2) that the declarant, when giving the prior testimony, was under oath in a legal proceeding; (3) that the issues in the two proceedings are substantially similar; and (4) that the party against whom the testimony is now offered had an opportunity to cross-examine the declarant at the earlier proceeding.

Bedney v. United States, 684 A.2d 759, 763 (D.C. 1996). The first two requirements are not in issue here.

Equally important, however, is the requirement that the party against whom the testimony is now offered must have had in the prior proceeding an adequate opportunity to cross-examine the declarant. An adequate opportunity to cross-examine exists if the parties and the issues in both proceedings are substantially the same.

Epstein v. United States, 359 A.2d 274, 277 (D.C. 1976). "Unless the issues were then [substantially] the same as they are when the former statement is offered, the cross-examination would not have been directed to the same material points of investigation, and therefore could not have been an adequate test for exposing inaccuracies and falsehoods." Id. at 277-78 (quoting 5 WIGMORE, EVIDENCE § 1386, at 82 (3d ed. 1940)) (emphasis deleted).

Smith's testimony at the aborted plea proceeding did not meet this requirement. Her plea to the lesser charge depended on her giving an insulating statement satisfactory to the prosecutor. Dudley's guilt or innocence was thus at issue only in a narrow sense: if Smith satisfied the prosecutor in linking Dudley to the sale (or at least in not [715 A2d Page 868]

exculpating him), her plea could proceed, otherwise it could not. *fn2 The prosecutor's questioning of Smith was therefore very limited. *fn2 When Smith testified contrary to the prosecutor's expectation, the plea ended and with it any issue — at that proceeding — of Dudley's guilt. The prosecutor asked no further questions because she had no reason to; Dudley's involvement in the sale had ceased to be a "material" issue in the proceeding. WIGMORE, supra. Indeed, with the plea agreement having dissolved, it might well have been improper for the prosecutor to continue questioning Smith about Dudley's complicity in the sale. See Alston v. United States, 383 A.2d 307, 312 n. 9 (D.C. 1978) (at codefendant's plea of guilty to indictment, prosecutor's extensive questioning of him about defendant's role in crime was "beyond the scope of proper guilty plea examination, apparently engaged in purely for discovery purposes, and should not have been condoned"). *fn2

"In our cases in which the admission of prior recorded testimony has been allowed, the cross-examination has been generally broad and unrestricted." Bedney, 684 A.2d at 765. The purpose of Smith's plea proceeding made such cross examination pointless, if not improper; hence it did not occur. *fn3 In short, the issues at this proceeding and at Dudley's later trial were not substantially similar, id. at 763; Epstein, 359 A.2d at 277, and thus the exception for prior cross-examined testimony did not apply. See also FED. R.EVID. 804(b)(1) (former testimony admissible if, inter alia, party against whom testimony is offered "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination") (emphasis added); cf. Hill v. United States, 664 A.2d 347, 351 n. 8 (D.C. 1995) (before grand jury, government "may have had different motives in mind . . . and not have been focused on the collateral issue of appellants' standing to challenge the search").

Our dissenting colleague is right, of course, that hearsay rules should be applied practically, not "mechanistically," especially when constitutional rights are at stake. But we deal here with statements whose trustworthiness, hence admissibility, is grounded in the practical opportunity for prior cross-examination defined by the incentives which the party opposing admission had to challenge their reliability. Try as she may, our colleague cannot convert the questioning that took place into recognizable cross-examination. At almost exactly the place where true cross would have begun (using, to take but one example, prior inconsistent statements) the prosecutor ceased questioning and effectively ended the proceeding. She did so because the reason for the questioning — indeed, for the proceeding itself — had expired.

We thus do not decide the "abstract" question whether questioning designed to elicit an insulating statement ever may satisfy the hearsay exception in dispute, though the answer will likely be no in light of Alston's admonition — not questioned by the dissent — against misuse of plea proceeding examination. We hold only that, consistent with the [715 A2d Page 869]

reason for Smith's testimony, the prosecutor's aborted questioning did not reflect the features of examination designed "to challenge whether the declarant was sincerely telling what [s]he believed to be the truth, whether [she] accurately perceived and remembered the matter [s]he related, and whether [her] intended meaning [was] adequately conveyed by the language [s]he employed." Feaster v. United States, 631 A.2d 400, 406-07 (D.C. 1993) (citations and internal quotation marks omitted). Dudley's right to a fair trial did not require the jury to hear statements of such untested reliability.

B. Declarations against penal interest.

Dudley further argues that Smith's statements at the plea proceeding and similar statements she made to Dudley's attorney the same day amounted to declarations against her penal interest. This argument too is unavailing. "[A] statement tending to expose the 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." Laumer v. United States, 409 A.2d 190, 199 (D.C. 1979) (en banc) (emphasis deleted). Smith's exculpation of Dudley by itself, of course, was not against her penal interest, nor did it become so just by being conjoined with an admission of her own guilt. See Williamson v. United States, 512 U.S. 594, 599-600, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Although by refusing to give a satisfactory insulating statement Smith limited her options (she could now plead guilty only to possession, not attempted possession), we doubt seriously that this made her exculpatory statements sufficiently against her penal interest to meet the admissibility threshold. That question need not be answered, though, because Dudley failed to persuade the trial judge of the existence of "corroborating circumstances clearly indicat[ing] the trustworthiness of the statement[s]." Laumer, 409 A.2d at 199. We may reverse the latter determination only if clearly erroneous, id. at 203, and we find no such error here.


I respectfully dissent from the majority's conclusion that the trial court did not err in excluding a witness's examined and sworn testimony during a prior plea hearing even though that testimony exculpated appellant and both parties agreed that the witness was unavailable to testify for the defense at trial. *fn4 The majority reaches this conclusion on the basis that the "same issues" were not present at the plea hearing as at the trial, and therefore the prosecutor did not have the same motive or, indeed, even an opportunity, to cross-examine the witness at the plea hearing as she would have at trial.

In this case, Smith, the unavailable witness, had an offer to plead to attempted possession of cocaine, a notch down from the charge of possession of cocaine, but the government's acceptance of the plea was conditioned on Smith's providing an "insulating statement" that Dudley had sold her the cocaine. Although such a statement would not be admissible in the government's case in chief in its subsequent prosecution of Dudley, the "insulating statement" is valuable to the government because it in effect would have prevented Smith from changing her story and being a credible witness for the defense at Dudley's trial. If Smith were to testify to Dudley's innocence during his trial, she could be impeached with her prior inconsistent statement at the plea hearing. See D.C.Code § 14-102 (1995 Repl.). Smith did not provide the anticipated insulating statement inculpating Dudley, but, instead, testified under oath to Dudley's innocence. Both parties agree that Smith was not available to testify at Dudley's trial. The question before us is [715 A2d Page 870]

whether, in light of Smith's unavailability, Smith's prior testimony at the plea hearing is admissible in order to present Dudley's defense at trial.

The answer to that question is reached by means of a case-by-case inquiry, and is not to be undertaken based on abstractions on the nature of the prior proceeding. As the Supreme Court has cautioned, "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Feaster v. United States, 631 A.2d 400, 405-06 (D.C. 1993), we adopted a fact-specific, case-by-case inquiry to determine whether a prior proceeding provided a sufficient opportunity to cross-examine to come within the prior-recorded testimony hearsay exception. After reviewing the "nature of the prosecutor's questions," the court concluded that "the questioning [before the grand jury] was directed at the ultimate issue of appellant's guilt." Id. at 406. Explaining that there is no requirement that there be an "adversarial, inquiring, searching, and explicative approach" in the prior proceeding, Feaster expressly rejected the notion that the non-adversarial character of Smith's plea proceeding precludes admission of Smith's testimony during her plea hearing at Dudley's later trial. See id.

Because our case-by-case approach focuses on the actual questioning at the prior proceeding to determine whether it in fact afforded a sufficient opportunity to cross-examine the witness, *fn5 it is therefore largely irrelevant that, as a general proposition, a prosecutor should not continue questioning a person in the course of that person's plea hearing concerning another's guilt once the person has refused to utter the insulating statement that the prosecutor requires as a condition of the plea. See Alston v. United States, 383 A.2d 307, 312 & n. 9 (D.C. 1978). The relevant question is whether the prosecutor in this case exercised such restraint. She did not. Moreover, at no point during the prosecutor's questions did the trial court intervene to curtail examination during the plea hearing. *fn5 Therefore, this case is unlike Bedney v. United States, 684 A.2d 759, 765 (D.C. 1996), where the government was precluded from questioning by the witness's Fifth Amendment privilege. Here, there was no Fifth Amendment privilege concern as Smith had already admitted to her possession of cocaine well before the prosecutor began to question her about Dudley. From that point on, the prosecutor's sole concern was to pin down Dudley's guilt in an insulating statement. The transcript shows without a doubt that the prosecutor tried to obtain that insulating statement by repeatedly asking Smith whether Dudley sold her cocaine. It was only when, after repeated questioning, that testimony was not forthcoming that the government withdrew its plea offer, notwithstanding the fact that Smith already had admitted to committing the offense to which she was pleading guilty — the ostensible purpose of the plea hearing. *fn5 [715 A2d Page 871]

Although the majority agrees that a fact-specific, case-by-case approach is required, it fails in that task. The majority concludes that "the purpose of Smith's plea proceeding made such cross-examination pointless, if not improper; hence it did not occur." Ante at 868. As noted, the "purpose" of the plea proceeding is not dispositive; we must look at what actually took place. The majority also states that "[a]t almost exactly the place where true cross would have begun (using, to take but one example, prior inconsistent statements) the prosecutor ceased questioning and effectively ended the proceeding." Ante at 868. There is no support in the record for that conclusion; the government did not proffer that it had any prior inconsistent statements that it could have used to impeach Smith even if she had been available to testify at trial. Even if such prior inconsistent statements had existed, a balancing of the defendant's right to due process and the government's interest in perfecting its presentation to the jury would counsel that the appropriate resolution would be to allow the government to introduce the prior inconsistent statement in response to the defense's introduction of the plea testimony at trial, rather than outright exclusion of Smith's plea testimony. Chambers' admonition against mechanistic application of the hearsay rule should also apply to the government's interest in the truth-seeking function of trial.

The fact of the matter is that, contrary to the majority's assertions that the government's questioning of Smith was "very limited" and ended when Smith testified contrary to the prosecutor's expectation, see ante at 867, a review of the record in this case reveals that the prosecutor did not cease to question Smith about Dudley's guilt even after the witness did not deliver the hoped-for insulating statement. *fn6 After having been [715 A2d Page 872]

asked whether Dudley had sold her cocaine, Smith denied it. The prosecutor's examination continued, and in a narrative statement Smith described how a third person, Sean Friedman, had given her the cocaine. After Smith initially exculpated Dudley and implicated Friedman during her narration of the cocaine transaction, the prosecutor twice again asked Smith point-blank whether she had received drugs from Dudley. Therefore, there are three denials by Smith — not two as the majority states — that Dudley sold her cocaine in the transcript of the plea hearing, as well as a statement that another individual was guilty of the drug distribution offense. It was only after Smith exculpated Dudley for the fourth time that the prosecutor indicated that the government was not "prepared to accept this insulating statement" and ceased questioning Smith. The government has not proffered how the prosecutor would have further cross-examined Smith at the plea hearing had it been known at the time that her testimony would be admitted at Dudley's trial. I therefore conclude that based on the record, the prosecutor had a sufficient opportunity to cross-examine Smith, and in fact did sufficiently cross-examine her, so that Dudley should have been permitted to introduce the statements of the subsequently unavailable Smith in presenting his defense at trial.

Having considered the government's opportunity to cross-examine Smith, I turn to the importance to Dudley's defense of Smith's statements exculpating Dudley and inculpating a third party, see Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996) (en banc), and the prejudice resulting to Dudley from their exclusion at his trial. This was not a strong government case. Indeed, the government's evidence against Dudley was sketchy. Two officers observed the transaction between Smith and Dudley under less than ideal circumstances: the location was dark, the officers' observation post was more than forty yards away and ten to eleven stories above where Dudley met Smith, and the view of both officers was impeded by a tree. No one officer observed the entire transaction; the testimony of the two officers, who were in radio contact during their observations, provided a patchwork of what happened. There was no physical evidence tying Dudley to the offense. Thus, in the context of a problematic government case, Smith's exculpatory statements could well have tipped the balance in Dudley's favor.

On the other hand, there would have been no undue prejudice to the government had Smith's exculpating statements been admitted as the government would have had an opportunity to impeach the statements even if Smith was absent at Dudley's trial. Certainly, the fact that the statements were made in the course of a plea hearing during which Smith admitted to possession of cocaine would have been admissible. Similarly, Smith's statements that she was friendly with Dudley, and that their children played together, could have been introduced to show bias. And, as mentioned above, had the government had any prior inconsistent statements impeaching Smith's plea hearing, these could have been introduced at trial so that the jury could better assess Smith's testimony during the plea hearing. Therefore, the government would not have been significantly disadvantaged by the admission at trial of Smith's prior statements.

Dudley "was denied his constitutional right to a fair trial when the trial court refused to allow him to present relevant, facially exonerating, and admissible prior recorded testimony to the jury — testimony which constituted his only defense." Alston, supra, 383 A.2d at 315. Under the circumstances, I would reverse because there is a reasonable doubt that the verdict might have been different if Smith's exculpatory statements had been admitted. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

RUIZ, Associate Judge, dissenting in part. *fn7

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