U.S. v. Watkins

• Citation: 171 U.S.App.D.C. 158,519 F.2d 294
• Decision Date: 05 February 1975
• Docket Number: No. 73-2226,73-2226
• Parties: UNITED STATES of America v. Sandra E. WATKINS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 294

519 F.2d 294

171 U.S.App.D.C. 158

UNITED STATES of America v. Sandra E. WATKINS, Appellant.

No. 73-2226.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 18, 1974.

Decided Feb. 5, 1975.

Peter R. Kolker, Washington, D. C. (appointed by this Court) for appellant.

James M. Hanny, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin and Eugene M. Propper, Asst. U. S. Attys., were on the brief, for appellee.

Before LEVENTHAL and MacKINNON, Circuit Judges, and MERHIGE, ^* United States District Judge for the Eastern District of Virginia.

Opinion for the Court filed by District Judge MERHIGE.

MERHIGE, District Judge:

Appellant was charged with three counts of possession with intent to distribute marijuana, cocaine and heroin, in violation of 21 U.S.C. § 841(a), and three counts of possession of these drugs, in violation of 33 D.C.Code § 402. She was tried by a jury which returned a verdict of guilty as to the three counts of simple possession. Imposition of sentence was suspended and appellant was placed on a two-year term of probation.

On appeal, appellant raises two claims: (1) that evidence seized at the time of her arrest was improperly admitted at trial; and (2) that the trial judge erred in denying her motion for judgment of acquittal. We find the record and authorities support appellant's contentions and, accordingly, reverse her convictions.

At trial, the Government's case in chief consisted of the testimony of four officers assigned to the Narcotics Branch of the Metropolitan Police Department who, on July 5, 1973, participated in the execution of a warrant to search Apartment 303 in a building at 1341 Clifton Street, N.W., Washington, D. C. The warrant had been obtained on the basis of information from an unidentified informant that narcotics had been purchased on several recent occasions at the Clifton Street address from a Negro male known as "Boggy."

The officers testified that upon arriving at Apartment 303, Sergeant Boyd, supervisor of the search team, knocked on the door and the door was opened and then quickly closed by an individual later identified as Gordon Bragg. Thereafter, Sergeant Boyd again knocked on the door, simultaneously identifying himself and stating that he had a warrant to search the apartment. Receiving no response Sergeant Boyd ordered the door forced open by other officers assigned to his detail.

Upon gaining admittance to the apartment, the officers found appellant Watkins sitting on a bed in the bedroom, Bragg standing near the commode in the bathroom, and another individual identified as Alfred McKenny sitting on a couch in the living room. During the search of the apartment which ensued, the officers observed books, in which appellant's name appeared, in a hall closet, as well as articles of women's clothing in the bedroom. Moreover, the officers stated that they seized the following items in the bedroom of the apartment: four tinfoil packages containing cocaine from the top drawer, and drug-related paraphernalia containing traces of heroin from the bottom drawer of a bedside dresser table; $1,480 in cash and a plastic bag containing heroin located between the mattress and box spring of the bed on which appellant was sitting; $733 in cash in a clothing bag in the closet; and three receipts indicating appellant had paid the rent on the apartment for April and June 1973 and that she had paid for utility service in June 1972. The officers also testified that they seized two napkins containing marijuana seeds from the top of the refrigerator in the kitchen of the apartment. ¹

At the trial, appellant objected to the introduction of the rent receipts on two occasions, each time contending that they constituted hearsay evidence. Initially the district court sustained appellant's objection. Appellant's counsel, however, anticipating that the Government would again attempt to introduce these documents, renewed his objection immediately following the luncheon recess. On this occasion counsel explained that since the receipts would be offered for the truth of their contents, that is, that appellant did in fact pay the rent for Apartment 303, their introduction through a police officer made it impossible for counsel to cross-examine the alleged author of those documents. The district court then inquired whether appellant would testify in her own behalf. In response to counsel's representation that she would, the court stated that it would admit the receipts into evidence, suggesting that appellant would, therefore, have an opportunity to explain the existence of the receipts.

While it is a matter of hornbook law that receipts are hearsay as independent evidence of the making of payment, ² the Government contends for the first time on appeal that these documents were tendered not for the truth of their contents, but rather to show they were found in the bedroom occupied by appellant on the day in question. This contention carries little weight with this Court in light of the comments of the trial judge during a bench conference on the issue, to the effect that what the Government was "seeking to prove is that this woman paid whatever rent is paid and got a receipt for it." Not only did the prosecution fail to dispel the Court's conclusion in this regard, but pointedly informed the jury during the opening statement that it would "put in some personal papers which were seized during the warrant to show who was paying for this apartment and who was living there." To now contend as it does that the purpose was otherwise is so patently contra to the record as to be unworthy of any detailed discussion on the part of the Court. We find from the record that a principal, if not the primary, purpose of the introduction of the contested documents was to establish exactly what the prosecution had assured the jury in its opening statement it was intended for to show "who was living there." We recognize, of course, that out-of-court declarations, such as these documents, may be admitted for a material purpose other than the verity of the assertions. ³ We find, however, that in light of the Government's initial representations to the jury, the prejudice to the defendant was so grave as to preclude the introduction of the rent and utility receipts for any purpose whatsoever, through a witness other than the declarant. ⁴

The Government also argues that since Officer Vislay, through whom the receipts were offered, was subjected to cross-examination and testified that he did not know who paid or who had received the rent for Apartment 303, appellant's claim is without merit. We find, however, that Officer Vislay's testimony could not reasonably cure the dangers traditionally recognized as inherent in hearsay, namely the lack of the normal safeguards of oath, confrontation and cross-examination of the credibility of the extrajudicial declarant. ⁵ Similarly, we find the district court's...