Harrison v. United States

KERN, Associate Judge:

A jury found appellant guilty of robbery upon the following evidence. An employee of Continental Trailways Bus terminal testified at trial that he had observed appellant and a companion approach an elderly man who had just disembarked from a bus and offered him assistance. After the soon-to-be victim declined their offer, appellant’s companion scattered coins on the floor and when the elderly gentleman bent over to pick them up appellant removed a brown envelope from the victim’s overcoat pocket. 1 Although security guards were summoned by a disinterested witness, 2 appellant and his accomplice departed quickly from the terminal and avoided apprehension at that point in time.

A police officer who responded to the scene testified that he interviewed the victim about 15 minutes after the incident. He described him as a man of 83 years of age who was very upset. The victim, not realizing that he had been robbed, reported to the officer that he had just lost a brown manila envelope containing $6,000 in cash.

The complainant did not appear at trial, but a detective assigned to the case represented to the court that the victim then lived with his daughter in Louisiana. She had advised the detective that her father was unable to come to Washington for the trial because he was undergoing treatment for a nervous condition. The prosecutor represented that he also had spoken by phone with the victim’s daughter and had been told the same thing.

A division of this court, with one judge dissenting, concluded that the conviction must be reversed. Such reversal was required because the police officer’s testimony concerning the elderly victim’s statement on the scene that the envelope contained $6,000 was hearsay evidence and deprived appellant “of the opportunity to confront a witness against him in violation of the Sixth Amendment.” The division majority stated:

We have grave difficulty, at least where a declarant is living, in permitting a hearsay statement to be used to supply an essential element of the government’s case. [Harrison v. United States, D.C. *736 App., 407 A.2d 683, 687 (1979) (vacated January 21, 1981).][ 3 ]

Subsequent to the division’s opinion, the Supreme Court issued its opinion in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), which examined the interplay between the hearsay rule and the Confrontation Clause. The Court noted that

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. [Id. at 66, 100 S.Ct. at 2539 .]

The Court also stated:

[C]ertain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” [Id. at 66, 100 S.Ct. at 2539 , citing Mattox v. United States, 156 U.S. 237, 244 , 15 S.Ct. 337, 340 , 39 L.Ed. 409 (1895).]

We now apply the Supreme Court’s teaching in Ohio v. Roberts to the instant case. It is not seriously questioned that the victim’s declaration on the scene shortly after having his pocket picked was a “spontaneous utterance” and therefore admissible in evidence as an exception to the hearsay rule. Nicholson v. United States, D.C.App., 368 A.2d 561 (1971). Nor do we believe that it can be seriously questioned that this particular hearsay exception is firmly rooted and has the “solid foundation” to which the Supreme Court in Ohio v. Roberts referred as permitting an inference of its reliability. 4 See Beausoliel v. United States, 71 U.S.App.D.C. 111 , 113 n.7, 107 F.2d 292 , 294 n.7 (1939), and authorities cited; McCormick, Evidence § 297 at 704 (2d ed. 1972); Nicholson v. United States, supra. Hence, we conclude the statement here constituted a hearsay exception resting upon such solid foundation that its reliability can be inferred without more and it comports with the Confrontation Clause. Ohio v. Roberts also requires us to address the “ultimate question”: whether the government has carried its burden of showing the victim is “unavailable despite good faith efforts undertaken prior to trial to locate and present that witness.” Id. 448 U.S. at 74 , 100 S.Ct. at 2543 . While recognizing with commendable candor that its showing in this case is sparse, the government nevertheless urges that it did locate and attempt to present the complainant. However, as it represented to the trial court, the victim’s advanced age, his uncertain medical condition, the distance from this jurisdiction to his home and his inability to travel, in the opinion of his daughter with whom he lived, precluded his presence at trial. We are satisfied under these particular circumstances that the prosecution met its burden under Ohio v. Roberts of showing the unavailability of the complainant for trial. 5

We note the government’s additional point based upon the Supreme Court’s comment in Ohio v. Roberts, supra at 65 n.7, 100 S.Ct. at 2538 n.7, citing Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970), that the Court has in certain limited *737 situations found “the utility of the trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness.” The government suggests the unlikelihood in the instant case that cross-examination of the victim, had he been present, would have shown any unreliability in his spontaneous utterance that $6,000 was in that brown manila envelope the eyewitness observed appellant lift from the victim’s pocket. Without in any way attempting to fashion a general rule of when “the utility of trial confrontation” is “so remote” as to relieve the prosecution from showing the unavailability of its witness for the purpose of satisfying the Confrontation Clause, we do agree that it would be realistic to conclude that defense questions of the victim, were he present at trial, could not have shaken his assertion that the envelope taken from him contained money. In this particular case, at least, we view the utility to the defense of confrontation with the victim to be minimal.

Affirmed

*

Separate statement by

NEWMAN, Chief Judge:

Despite the indication in the caption of this case to the contrary, there is no “opinion of the court.” The opinion by Kern, J., commands the support of four judges. The opinion by Ferren, J., (which I join), concurs in results and elucidates the disagreement he and I have with the opinion of Kern, J. Judges Mack and Kelly dissent. Since the opinion by Kern, J., only has four votes out of eight judges voting, it cannot be accurately described as an opinion of the court, for in the language of Harris, J., with which Kern, J., joined, “It cannot be [an opinion for the court], as [an opinion for the court] speaks for the court, whereas the lead opinion speaks only for four judges.” Mouzavires v. Baxter, D.C.App., 434 A.2d 988 , 998 1981).

. There was expert testimony that dropping coins on the floor in front of a victim is a technique commonly used by pickpockets.

. This witness gave a description of the pickpocket to police on the scene, and subsequently made an identification of appellant from a photo array and a lineup. The witness had seen appellant a number of times in the terminal before the incident in question.

. Upon petition by the government this court vacated the division opinion and ordered the case reheard en banc.

. We are not persuaded by appellant’s argument that the out-of-court statement was inadmissible because the officer, in relating what the victim had said on the scene, described him as confused and disoriented. The reliability of a spontaneous utterance may rest to a considerable extent upon the nervous reaction of the declarant to a distressful occurrence. See Nicholson v. United States, supra. Certainly, the victim’s confusion was a proper subject for consideration by the trier of fact but it did not render the statement inadmissible. Put another way, the victim’s mental state immediately after the robbery was relevant but it went to the weight of his statement, not its admissibility.

.The government would do well to relate carefully and comprehensively for the record at trial its efforts to make the witness available and the reasons such efforts have proved unavailing.

Despite the protestations of Newman, C. J., (quoting from a case in which we were split 4-4), the fact remains that here six judges agree with the holding of this opinion: that upon the basis of Ohio v. Roberts, 448 U.S. 56 , 100 S.ct. 2531, 65 L.Ed.2d 597 (1980), the trial court correctly admitted into evidence over defense objection the spontaneous declaration made at the scene of the crime by the complainant who was thereafter absent from the trial.