APPEAL FROM THE SUPERIOR COURT, REGGIE B. WALTON, J.
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.
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.
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 ...