Henson v. United States

• Decision Date: 13 February 1979
• Docket Number: No. 11946.,No. 12619.,11946.,12619.
• Citation: 399 A.2d 16
• Parties: Clifton R. HENSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

399 A.2d 16

Clifton R. HENSON, Appellant, v. UNITED STATES, Appellee.

No. 11946.

No. 12619.

District of Columbia Court of Appeals.

Argued October 16, 1978.

Decided February 13, 1979.

Kenneth E. Labowitz, Alexandria, appointed by this court, for appellant.

William J. Hardy, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Timothy J. Reardon, III, and Peter E. George, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and YEAGLEY and MACK, Associate Judges.

NEWMAN, Chief Judge:

Appellant, convicted of one count of carrying a pistol without a license, seeks reversal on the grounds that the government suppressed exculpatory material and that the trial court erred in refusing to admit certain hearsay statements into evidence. He also challenges the sentence imposed by the trial court, arguing that it was improper to use the same prior felony conviction to enhance his sentence under two separate statutes. We affirm the conviction but vacate the sentence and remand for resentencing.

I.

On April 21, 1974, police officers arrested appellant and Wesley Brown in a car driven by appellant after a brief high-speed chase that terminated in a crash. The officers found two pistols, one in appellant's belt and the other wrapped in a towel, on the floor near where Brown was sitting. On May 8, 1974, appellant and Brown both were indicted¹ for carrying a pistol without a license, D.C.Code 1973, § 22-3204.

On July 19, 1974, the government filed two informations pursuant to D.C.Code 1973, § 23-111. One recited appellant's conviction of housebreaking in 1964. Appellant was thereby subjected to a maximum of ten years' imprisonment if convicted of a violation of D.C.Code 1973, § 22-3204. The second information recited the 1964 housebreaking conviction as well as a conviction of robbery in 1970. This information, known colloquially as "life papers," sought to invoke the increased punishment provisions of D.C.Code 1973, § 22-104(a), which provides a maximum of life imprisonment.²

At the time of his arrest appellant was on parole from the 1970 conviction for robbery. The District of Columbia Board of Parole (the Board) began proceedings to determine whether appellant's parole should be revoked. On September 13, 1974, the Board conducted a hearing attended by appellant and his counsel. Brown appeared voluntarily at the hearing and told the Board that he had been in possession of both pistols; that appellant had been rendered unconscious by the crash; and that, in the brief period between the crash and their arrest while appellant was still unconscious, he had slipped one of his pistols into appellant's belt where police found it. The United States was not represented at this hearing and Brown was not under oath while testifying. See 9 DCRR 303.3 (1972).

At a status hearing, the trial judge severed the cases and continued Brown's trial until the conclusion of the appellant's trial. At the same hearing Brown's attorney announced that his client would assert his Fifth Amendment privilege against self-incrimination if called to testify. In light of Brown's unavailability, appellant requested that he be provided with a transcript of Brown's statement before the Board. He stated his desire to introduce it at trial as exculpatory evidence or to use it to impeach Brown should he change his mind and testify. The trial court denied the request, stating that Brown's declarations before the Board were inadmissible as substantive evidence but would be allowed for impeachment if Brown testified. The court ruled further that the chairman of the Board would be made available to testify with the transcript should Brown decide to testify and alter his story.³

The case proceeded to trial on December 9, 1974, and on December 10, 1974, the jury found appellant guilty as charged. On January 31, 1975, the trial judge sentenced appellant to a prison term of from seven to twenty-five years.

II

Appellant argues first, that he was denied due process when the trial court denied his motion to produce the transcript of Brown's testimony before the Board. Appellant bases his argument on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He contends that the prosecutor is required to disclose all evidence favorable to the accused in a criminal case, whether or not that evidence would be admissible at trial, and that the trial court's refusal to order a transcript was tantamount to suppression. "[T]he rule of Brady applies basically in three situations, each involving the discovery after trial of information which had been known to the prosecution but unknown to the defense." Smith v. United States, D.C.App., 363 A.2d 667, 668 (1976), citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis added). Appellant, who was present with his attorney at the proceeding before the Board, was fully aware of the existence and the contents of Brown's statement. We are unable, therefore, to credit any suggestion that the government suppressed exculpatory material.

We are satisfied also that the trial court did not err in ruling that the statement would be inadmissible at trial, other than to impeach Brown in the event he testified adversely to appellant. The statement was hearsay and therefore was inadmissible as substantive evidence unless it fell within one of the exceptions to the hearsay rule. The two exceptions asserted by appellant are those dealing with prior recorded testimony and with statements against the declarant's penal interest.

Prior recorded testimony is admitted into evidence as an exception to the hearsay rule

when (1) the direct testimony of the declarant is unavailable, (2) the former testimony was given under oath or affirmation in a legal proceeding, (3) the issues in the two proceedings were substantially the same, and (4) the party against whom the testimony now is offered had the opportunity to cross-examine the declarant at the former proceedings. [Alston v. United States, D.C.App., 383 A.2d 307, 315 (1978) (citations omitted).]

Brown's testimony before the Board was not given under oath or affirmation. Moreover, even assuming that the issues in the two proceedings were substantially the same, no one from the U.S. Attorney's office was present at the Board's hearing or had the opportunity to cross-examine Brown. Thus, the statement was not admissible under this exception.

Appellant also asserts the applicability of the exception to the hearsay rule for statements against the declarant's penal interest. This court has not had the occasion to accept the penal interest exception to the hearsay rule nor does this case present us with one. See Steadman v. United States, D.C.App., 358 A.2d 329, 331-32 (1976). Assuming for the sake of discussion that this court were to adopt the position of the Federal Rules of Evidence and recognize statements against penal interest as an exception to the hearsay rule, the fact that a statement was alleged to have been contrary to the declarant's penal interest would not be sufficient to warrant its admission into evidence. "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Fed.R.Evid. 804(b)(3). The courts have recognized four general considerations as the key to a proffered statement's admissibility:

(1) the time of the declaration and the party to whom the declaration was made;

(2) the existence of corroborating evidence in the case;

(3) the extent to which the declaration is really against the declarant's penal interest;

(4) the availability of the declarant as a witness. [United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977), citing Chambers v. Mississippi, 410 U.S. 284, 300-01, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).]

The trial court's inquiry into the trustworthiness of the proffered hearsay statement contains two considerations: whether the declarant in fact made the statement and whether the statement itself is sufficiently reliable, United States v. Bagley, 537 F.2d 162, 167-68 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977), although these two considerations may often tend to merge. To determine whether a hearsay statement against the declarant's penal interest is sufficiently trustworthy to be admitted under Rule 804(b)(3), the trial court must determine "whether the statement so far tended to subject [the declarant] to criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true," id. at 165, and whether "corroborating circumstances clearly indicate the trustworthiness of the statement." Fed.R.Evid. 804(b)(3) (emphasis added). "This requirement goes beyond minimal corroboration." United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976).

We have no doubt that Brown's statement was made, that it arguably inculpates him, and that it exculpates appellant. We find, however, that "corroborating circumstances [which] clearly indicate the trustworthiness of the statement" to be totally lacking. Brown and appellant were arrested in the same car in which the police found two pistols; both were charged with the same offense. As a practical matter, Brown (who was not represented by counsel before the Board), was not exposing himself to significantly greater liability by saying that both pistols, as distinguished from only one, were his.⁴ Appellant, on the other hand, faced not only revocation of his parole but also the possibility of an enhanced penalty under D.C.Code 1973, § 22-3204, as a convicted felon found in possession of a dangerous weapon. Outside of the fact that Brown invoked his Fifth Amendment privilege after the trial...