Appeal from the Superior Court of the District of Columbia (CMD-968-08) (Hon. Wendell P. Gardner, Jr., Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge:
Submitted October 12, 2010
Before RUIZ, KRAMER, and OBERLY, Associate Judges.
Appellant, Damion M. Jones, appeals his conviction in Superior Court on one count of possession of phencyclidine (PCP). On appeal, he contends that the trial court erred in admitting prejudicial hearsay statements and in allowing the government to mischaracterize the evidence during its closing statement. We conclude that the trial court erred in admitting hearsay evidence, and that the error was not harmless; therefore, we reverse and remand for a new trial.
Appellant was charged by information with "unlawfully, knowingly, and intentionally posess[ing] a quantity of phencyclidine, that is, PCP, a controlled substance," in violation of D.C. Code § 48-804.01 (d) (2001). Appellant moved to suppress the PCP-laced cigarette that the government proposed to present at trial as proof that he possessed PCP.
At the suppression hearing, Metropolitan Police Department (MPD) Sergeant Anthony Guice testified that on January 11, 2008, he and Officer Charles Viggiani were canvassing the area for a burglary suspect when they came upon appellant and two other men standing in the mouth of an alley near 1736 Independence Avenue, Southeast. The men were oriented such that one man faced the officers approaching down the alley, while appellant and the third man had their backs to them. As the officers drew near, "there was a pause" in the men's conversation, and Sergeant Guice noticed appellant's hand "come down to his side and an object fall to the ground." As the officers came closer, within about five feet of the men, Sergeant Guice detected the odor of PCP.*fn1 He and Officer Viggiani then stopped the three men and ordered them to place their hands against a nearby fence. Sergeant Guice asked the man beside appellant to move his foot because "that was approximately where [he] had seen the object fall." Underneath the man's foot, Sergeant Guice discovered a cigarette saturated with a chemical substance that was later shown to be PCP.
The trial court denied appellant's motion to suppress, and the parties agreed to incorporate the evidence presented at the suppression hearing into the bench trial.*fn2 At trial,
the government called Officer Viggiani, who testified about the events that led to appellant's arrest. Officer Viggiani testified that as he and Sergeant Guice approached the three men, he was conversing with Sergeant Guice when he noticed Sergeant Guice get "a serious look on his face," "like something was up." When they were about three feet away from the men, Officer Viggiani "began to smell a strong chemical odor" that he recognized to be PCP.*fn3 Officer Viggiani testified that Sergeant Guice ordered the men to move against the fence, recovered the cigarette, handed it to Officer Viggiani, and remarked "This guy is locked up." Over a defense objection, Officer Viggiani testified that Sergeant Guice told him that he had observed appellant "drop a cigarette to the ground with his right hand." Officer Viggiani acknowledged that he never saw appellant drop any object.
The trial court found appellant guilty of possessing a PCP-laced cigarette. It sentenced appellant to 180 days incarceration, to run consecutively with any other sentences appellant may serve on other charges. Appellant filed this timely appeal on October 28, 2008.
Appellant contends that the trial court erred in admitting the hearsay statement made by Sergeant Guice to Officer Viggiani, that he observed appellant drop a cigarette to the ground as they approached the men in the alley. The government responds that Officer Viggiani's testimony was admissible because the statement was not hearsay and that, in any event, its admission into evidence did not prejudice appellant.
We review the trial court's decision to admit or exclude evidence for abuse of discretion. See Goines v. United States, 905 A.2d 795, 799 (D.C. 2006). However, because "the exercise of that discretion must be founded upon correct legal principles," "it is an abuse of discretion if the trial judge rests his or her conclusions on incorrect legal standards." Blackson v. United States, 979 A.2d 1, 6 (D.C. 2009) (internal quotations and alterations omitted). Moreover, whether a statement satisfies a particular hearsay exception is a legal question that we review de novo. Id. We apply the Kotteakos harmless error standard in evaluating the impact of an erroneously admitted hearsay statement. See Odemns v. United States, 901 A.2d 770, 781 (D.C. 2006); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Hearsay is an out-of-court assertion of fact offered into evidence to prove the truth of the matter asserted. See Mercer v. United States, 864 A.2d 110, 117 (D.C. 2004). Generally, hearsay evidence is inadmissible at trial because [o]ut-of-court statements . . . lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not ...