U.S. v. Smallwood

• Decision Date: 13 January 2004
• Docket Number: No. CRIM. 03-245-A.,CRIM. 03-245-A.
• Citation: 299 F.Supp.2d 578
• Parties: UNITED STATES of America v. Tyrone SMALLWOOD, Thomas Edward Smith, Jr.
• Court: U.S. District Court — Eastern District of Virginia

299 F.Supp.2d 578

UNITED STATES of America v. Tyrone SMALLWOOD, Thomas Edward Smith, Jr.

No. CRIM. 03-245-A.

United States District Court, E.D. Virginia, Alexandria Division.

January 13, 2004.

COPYRIGHT MATERIAL OMITTED

Brian D. Miller, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Thomas Abbenante, Washington, DC, Lana Manitta, Marin, Arif, Petrovich & Walsh, Springfield, VA, Ivan Darnell Davis, Office of the Federal Public Defender, Frank Salvato, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue in this prosecution of two defendants for murder and use of a firearm while engaged in a drug conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 924(c) & (j) is whether certain statements made by the murder victim to his sister, brother, and roommate on the day of the murder are admissible pursuant to an exception to the hearsay rule.

I.

Defendants Tyrone Smallwood and Thomas Edward Smith, Jr. were indicted and now face trial for the February 11, 1996 murder of Conrad Shelton in Washington, D.C., a murder they allegedly committed while engaged in drug trafficking. Both defendants are also charged with the use of a firearm in connection with a drug conspiracy and Smith is additionally charged with conspiring to traffic in drugs.¹ For a more detailed statement of the facts underlying the alleged drug conspiracy and murder of Shelton, see United States v. Smallwood, 293 F.Supp.2d 631 (E.D.Va.2003) (denying defendants' motion to transfer venue, denying defendants' motion to dismiss § 924(c) charge, and deferring ruling on defendants' motion to suppress statements pending further hearing). Only the facts pertinent to the government's motion in limine to admit Shelton's statements on the day of the murder need be recounted here.

The Indictment alleges that Smallwood and Smith, also known as "Billy Q," were members of a drug trafficking conspiracy that engaged in manufacturing and distributing crack cocaine and other illegal narcotics in the District of Columbia, Maryland, Virginia, and elsewhere between 1994 and 1998. More than a dozen co-conspirators, including defendants' main drug supplier, have been successfully prosecuted in this district for their roles in the drug conspiracy.² Moreover, one co-conspirator, Anthony Brown, pled guilty to aiding and abetting the murder of Shelton while engaged in a crack cocaine distribution conspiracy in violation of 18 U.S.C. § 848(e)(1)(A). See United States v. Brown, Criminal No. 03-612-A, 82 Fed. Appx. 301 (E.D.Va.2003) (Plea Agreement).

The government alleges that Smallwood and Smith became acquainted with Shelton when they hired him to perform cleaning and repair jobs at their Washington, D.C. apartment, located at 50 49th St., N.E. The government also alleges that Smallwood and Smith, believing that Shelton had stolen drugs and money from their apartment, instructed Shelton to meet them at 3 p.m. on February 11, 1996. Shelton complied with this instruction and met the defendants in the afternoon on February 11. According to the Indictment, once at defendants' apartment, Smallwood and Smith severely beat Shelton. Brown, who was also present at the apartment, described the events of that afternoon and evening in the course of his plea colloquy. Specifically, it appears that Brown received a telephone call from Smallwood requesting that Brown come to defendants' Washington, D.C. apartment. Shortly after Brown arrived at the apartment, the four individuals — Smallwood, Smith, Brown, and Shelton — traveled in a rental car, driven by Smallwood, in the direction of an alley near the corner of 5th and O Sts., N.W. Along the way, Smallwood and Smith stopped at a gas station to purchase a soft drink while Brown remained in the car with Shelton. Once they arrived at the alley, defendants led Shelton down the alley and shot him more than a dozen times,³ ultimately killing him. Brown remained in the car to act as "lookout." He claims he observed Smallwood and Smith kill Shelton.

The government now seeks to offer into evidence in its case-in-chief the following testimony of Shelton's sister, brother, and roommate as to Shelton's statements either made to them or overheard by them on the day of the murder:

(1) Shelton's roommate's testimony that he observed that Shelton was nervous on the day of the murder.

(2) Shelton's sister's testimony that she overheard Shelton having a loud and heated telephone conversation, apparently with someone Shelton called "Ty."

(3) Shelton's sister's testimony that she overheard Shelton say that he would meet "Ty" at the Shrimp Boat, a restaurant near defendants' Washington, D.C. apartment, and promised he "would be there."

(4) Shelton's brother's testimony that Shelton asked him for a ride to "Ty's" apartment because he had to go see Ty and Billy Q.

(5) Shelton's roommate's testimony that Shelton said he was going to "Ty and them's place" and that "Ty and them" told him to be there at 3:00 p.m., not 2:59 or 3:01.

(6) Shelton's roommate's testimony that Shelton said he was going to "Ty and them's place" to avoid anyone else being hurt.

(7) Shelton's roommate's testimony that Shelton said he was going to die.

(8) Shelton's roommate's testimony that Shelton said he had to go see "Ty and them" because they were angry that he had stolen drugs from them. Specifically, Shelton said, "damn they mad at me, Ty and them."

(9) Shelton's roommate's testimony that Shelton said he had stolen cocaine from "Ty" and had planned on robbing the defendants, but that "Ty" had learned of the theft and the planned robbery.

Thus, the question presented is whether any of this testimony constitutes hearsay and, if so, whether it is excluded by the hearsay rule, Rules 801 & 802, Fed. R.Evid., or is instead admissible pursuant to an exception to that rule.⁴ Also at issue is whether any of this testimony, if it is admissible, must nonetheless be excluded pursuant to Rule 403, Fed.R.Evid.⁵

II.

a. Statement (1)

Federal Rules of Evidence 801 & 802 provide that hearsay statements are not admissible evidence and define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801, Fed.R.Evid.; see also Barone, 114 F.3d at 1292 ("The out-of-court statements of a non-testifying declarant ordinarily are excluded as hearsay if offered to prove the truth of the matter asserted."). Given this definition, it is clear that Shelton's roommate's testimony that Shelton appeared nervous on the day of the murder is not hearsay because it is not an out-of-court statement by a non-testifying declarant offered to prove the truth of the statement; it is, instead, simply a statement of a testifying declarant as to that declarant's observations, i.e. Shelton's nervousness. As such, it is not excludable hearsay. See Ross v. St. Augustine's College, 103 F.3d 338, 342 (4th Cir.1996) ("Statements that contain direct observations of the physical appearance and actions of another person are not hearsay at all, but rather direct evidence of the facts in question."). Additionally, it is worth noting that the "state of mind" hearsay exception would apply were the roommate to testify that he was told by Shelton, or overheard Shelton say, that he, Shelton, was nervous. See Rule 803(3), Fed.R.Evid.⁶ This exception to the general hearsay rule provides that a hearsay statement is admissible if it bears on the declarant's existing state of mind as long as it is not a "statement of memory or belief to prove the fact remembered or believed."⁷ The exclusion of statements of memory or belief from the exception is necessary to prevent the exception from swallowing the hearsay rule altogether.⁸ Notably, only those statements made contemporaneously with the declarant's state of mind are covered by the Rule 803(3) state of mind exception.⁹ This contemporaneity requirement ensures the statement's reliability. See Secor, 73 Fed. Appx. at 556 (stating that the contemporaneity requirement ensures that the declarant does not have time to reflect and fabricate).

In sum, the roommate's testimony that he observed Shelton to be acting nervously on the day of the murder is not hearsay and is admissible as this evidence has no "undue tendency to suggest decision on an improper basis," and hence, its probative value is not outweighed by any unfair prejudice. Rule 403, Fed.R.Evid. advisory committee's note; see also U.S. v. Lentz, 58 Fed. Appx. 961, 965 (4th Cir.2003) (defining "unfair prejudice" based on the advisory committee's note to Rule 403); Ramsey, 1998 WL 453855, *1, 1998 U.S.App. LEXIS 16994, at *4 (same); Blackwood, 913 F.2d at 144 (same).

b. Statement (2)

Shelton's sister's testimony that she overheard Shelton having a loud and heated telephone conversation on the day of the murder is also not hearsay if offered solely to prove that she observed and heard Shelton engaging in a loud telephone conversation in which Shelton appeared angry or heated. See Ross, 103 F.3d at 342. Yet, the hearsay rule does come into play if, as appears to be the case, the government offers this testimony to prove that Shelton was in fact speaking to Smallwood in this telephone conversation. Offered for that purpose, the sister's testimony would be hearsay because it is an out-of-court statement by a non-testifying declarant (Shelton) offered to prove the truth of the matter asserted, namely that Shelton was actually speaking to Smallwood. See, e.g., United States v. Hernandez, 1998 WL 841504, *2, 1998 U.S.App. LEXIS 30859, at *5 (4th Cir. December 7, 1998) (finding that a witness' testimony was inadmissible hearsay because it was "an out-of-court statement offered to prove the truth of the matter asserted").

The conclusion that this testimony is hearsay if offered to prove that Shelton was in fact speaking to...