Harrison v. United States

FERREN, Associate Judge,

with whom NEWMAN, Chief Judge, joins, concurring in the result:

I agree that Ohio v. Roberts, 448 U.S. 66 , 100 S.Ct. 2531 , 66 L.Ed.2d 597 (1980), warrants affirmance on the facts here, but I believe the plurality opinion makes much to casual — and thus inaccurate — use of that decision. Thus, I cannot join in it.

In Ohio v. Roberts, supra, the Supreme Court considered “the relationship between the Confrontation Clause and the hearsay rule with its many exceptions,” id. at 62, 100 S.Ct. at 2537 , and reconfirmed a two-element test for determining whether hearsay satisfies the confrontation requirement:

In sum, [1] when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. [2] 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. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. [Id. at 66, 100 S.Ct. at 2539 (footnote omitted).]

As to the second element, I agree that the hearsay statement — a spontaneous utterance — offered a solid foundation of reliability. See Nicholson v. United States, D.C.App., 368 A.2d 561, 564 (1971). As to the first “unavailability” element, however, I am troubled by two statements in the plurality opinion.

First, although recognizing — as the government itself does — that the showing of the victim’s unavailability is “sparse,” my colleagues merely assert: “We are satisfied under these particular circumstances that the prosecution met its burden under *738 Ohio v. Roberts of showing the unavailability of the complainant for trial.” Ante at 736 (footnote omitted). I do not believe the facts in themselves support this conclusion. As far as the record shows, the government concluded that the victim was unavailable to testify solely on the basis of a police officer’s conversation with his daughter. There is no evidence that a representative of the government ever spoke to the victim himself or to a responsible physician who could have informed the government of the nature of the victim’s medical condition. While the problems of advanced age, medical condition, and difficulty of travel may prevent a witness from testifying in person — -and thus make him “unavailable” — the interpretation of his condition should not be left solely to a concerned daughter, who naturally might seek to protect her father from the strain of testifying in court without regard to how serious the difficulty really would be.

Second, I am concerned about the assertion “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.” Ante at 736. I do not think this court is in a position to make a speculative, subjective judgment about the likely effect of cross-examination on the witness who has not been before the court, especially given the trial court’s characterization of the hearsay as “crucial.” 1

Nonetheless, I agree that, under the circumstances of this case, the failure of the government to make a more convincing demonstration of unavailability does not require reversal. Although defense counsel objected to admission of the hearsay evidence, he did so entirely on the basis of the second, “reliability” element, f. e., that it was not a spontaneous utterance. He never challenged the strength or good faith of the government’s effort to make the witness available. The only time defense counsel questioned whether the government could have produced the victim to testify came in an entirely different context: whether the victim’s absence entitled appellant to a “missing witness” instruction to the jury. Specifically, the court stated and the government agreed that the “only purpose” of the police officer’s testimony about the victim’s absence from trial was on the “missing witness” issue. Sustaining defense counsel’s objection, the court instructed the jury to disregard the police officer’s testimony “with respect to what the daughter had said about any medical condition of the complainant not being here.”

Given defense counsel’s failure to object on the ground of unavailability, we must find “plain error” in the trial court’s failure to exclude the hearsay, see Watts v. United States, D.C.App., 362 A.2d 706, 709 (1976) (en banc), for there is no reason to believe the government could not have enhanced its evidence in this respect. At the time the government attempted to offer evidence of the victim’s unavailability, defense counsel objected, the trial court sustained the objection, and the government necessarily retreated from this line of questioning.

For two reasons, I cannot find plain error, meaning error “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” Id. First, under the rules of evidence, admissibility of a spontaneous utterance — unlike the “prior-testimony” exception at issue in Ohio v. Roberts, supra — is not premised on the decedent’s unavailability. Authorities long have recognized that the report of a spontaneous utterance is typically more reliable than the memory of the witness who takes the stand and is subject to cross-examination. See 2 Jones on Evidence § 10:1 (6th ed. 1972); McCormick on Evidence § 297 (2d ed. 1972); VI Wigmore on Evidence §§ 1747, 1748 (Chadbourn rev. 1976). *739 Thus, even if the victim had been available at trial, the hearsay report of his on-scene exclamation about losing $6,000 in cash in a brown manila envelope would have been admitted as substantive evidence. See Jones, supra; McCormick, supra, §§ 253, 297; Wigmore, supra; ef. FRE 803(2) in S. Saltzburg & K. Redden, Federal Rules of Evidence Manual at 524 (1972). It follows that the “reliability” element is especially strong here.

Second, there was eyewitness testimony that appellant, who was identified from a photo array and at the lineup, stole the envelope; the hearsay evidence was only necessary to show that appellant had taken something “of value” from the victim, D.C. Code 1973, § 22-2901 — a crucial element of the offense but an element virtually evident from the eyewitness account itself.

In summary, I would affirm on the ground that no plain error has been shown, not on the ground that the unavailability requirement — a constitutional requirement — has been met.

. In Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) cited in Ohio v. Roberts, supra, and by Judge KERN for the proposition that “the utility of the trial confrontation [was] so remote that it did not require the prosecution to produce a seemingly unavailable witness,” Ohio v. Roberts, supra 448 U.S. at 65 n.7, 100 S.Ct. at 2538 n.7, ante at 736, the hearsay related to only one of 20 witnesses on an issue of only “peripheral significance.” Dutton, supra 400 U.S. at 87 , 91 S.Ct. at 219 .