Laumber v. United States

• Decision Date: 05 December 1979
• Docket Number: No. 12246.,12246.
• Citation: 409 A.2d 190
• Parties: Henry LAUMER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

409 A.2d 190

Henry LAUMER, Appellant, v. UNITED STATES, Appellee.

No. 12246.

District of Columbia Court of Appeals.

Argued En Banc April 12, 1979.

Decided December 5, 1979.

COPYRIGHT MATERIAL OMITTED

Carol G. Freeman, Glen Echo Heights, Md., appointed by the court, for appellant.

Andrea L. Harnett, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN, Associate Judges, and YEAGLEY, Associate Judge, Retired.^*

NEWMAN, Chief Judge:

On this appeal, we are asked to consider whether declarations against penal interest should be admissible in evidence as an exception to the hearsay rule in this jurisdiction. Concluding that they should, we remand for a new evidentiary hearing and for a ruling on whether the excluded statements meet the standards for admissibility that we adopt herein.¹ In Part I, we set forth the relevant evidence and trial proceedings. In Part II, we discuss the declaration against penal interest exception and adopt that exception as formulated in Fed. R.Evid. 804(b)(3) for this jurisdiction. We discuss the trial court's inquiry in ruling on the admissibility of such proffered declarations in Part III. Part IV contains our reasons for remanding appellant's case and ordering an evidentiary hearing.

I

At approximately 10 a. m. on June 18, 1975, Robert Mosimann, a self-employed plumber, was at the rear of a house at 1602 D Street, N.E., unloading tools from his truck. As he walked into the garage of the house with some tools, he saw a green Chrysler drive up behind his truck and park. A man got out of the car. When Mosimann came out of the garage, the man came in front of the truck and ordered him to move back into the garage. The man had what appeared to be the butt of a gun partially covered by his shirt.

Rather than obeying his assailant's order, Mosimann moved back towards his truck. When they were behind the truck, the man demanded Mosimann's wallet. Mosimann laid the wallet on the back of the truck. The man picked up the wallet, backed into his car and drove south on 16th Street. The wallet contained numerous items, including Exxon, American Oil, and Master Charge cards, Mosimann's driver's license and $2 in cash. Although the entire incident took only about five minutes, Mosimann managed to take note of the license number of the car, Maryland tag AXV 227. Mosimann immediately called the police. Upon their arrival, he described the robber in detail.

On July 24, 1975, about six weeks following the robbery, Detective William E. Patterson, Jr., showed Mosimann a group of photographs of men generally fitting the description of the robber. Mosimann picked appellant's picture from the photographic array. Thereafter, on September 4, 1975, Mosimann identified appellant in a lineup.

Trial was begun in May 1976, but on defense motion, a mistrial was declared when it appeared that further investigation of the case would be appropriate. Mosimann apparently had received his Exxon statement and found in it a slip indicating that his credit card, stolen during the robbery on June 18, had been used on July 11, some 23 days later, by Mr. James Hammond.

Subsequent investigation by the police revealed that the car for which the stolen credit card had been used had been rented to one Mary Kerry, who had lent the car to Donald Hales. Hales told the police that he had lent the car to James Hammond and that he believed that Hammond had used the credit card. Hales also told the police that he had found the stolen card in Hammond's car about four or five days before July 11. Both Hales and Hammond claimed that Hammond's car had been missing around the time the robbery took place.

Retrial began on February 28, 1977. The government's case consisted in large part of Mosimann's testimony of the robbery on June 18. He also testified that he had identified appellant in the photographic array and the lineup.

In his defense, appellant took the stand and denied that he had robbed Mr. Mosimann or that he had ever carried a handgun in the District of Columbia, although he admitted that he might have passed the house at 1602 D Street, N.E. on the morning of the robbery. Appellant further testified that at the time of the robbery he was at 1001 F Street, N.E., the house of a former co-worker and that he had been driving a maroon Oldsmobile.²

Webb Johnson testified in appellant's defense that he had seen appellant at about 9:00 a. m. on the morning of June 18, 1975, in front of 1602 D Street, N.E., when appellant drove up behind his car in a red Oldsmobile Cutlass.

The final witness on behalf of the defense was Detective Patterson, who was permitted to testify that the car driven by the robber, bearing Maryland tags AXV 227, was registered to Bernice Hammond and that one of the credit cards taken from Mosimann by the robber had been used after the robbery. The defense proffered further testimony by Detective Patterson to show that James Hammond, the husband of Bernice Hammond, had been in possession of at least one of the stolen credit cards on July 11, 1975, a few weeks after the robbery, and possibly on the very night of the robbery, but this testimony was excluded by the court as constituting inadmissible hearsay.³

Testifying without the jury present, Detective Patterson related statements made to him by Hales and Hammond during the course of his investigation. Patterson testified that Hales had told him that a woman had rented a car for him which he and Hammond used on July 11, 1975; that Hammond had given him [Hales] the credit card to use in buying gas for the rental car that night; and that Hammond had been with him when they bought the gas. Hammond had also told the detective that on the day of the robbery, he had come to court with Hales and when he had come out of court he had found his car missing. Hammond claimed to have made a police report about the missing car. Hammond also told the officer that he had found the car late that night and had discovered the stolen credit cards on the seat. Hales was with him at the time. Hammond told Detective Patterson that he thought the cards, belonged to Hales, and he had given them to Hales, but did admit that he had used them twice. Finally, both Hales and Hammond told the detective that they did not know appellant. It was the foregoing testimony of Detective Patterson which appellant unsuccessfully sought to have admitted under the declaration against penal interest exception to the hearsay rule.

II

Hearsay evidence, the in-court testimony of an out-of-court statement offered to prove the truth of the matter asserted, is generally not admissible at trial. McCormick, Law of Evidence § 246, at 584 (2d ed. 1972); 5 Wigmore, Evidence § 1361, at 2-3 (3d ed. 1940). The rule of evidence which renders hearsay inadmissible is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury. [Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297 (1973) citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).]

However, there exist a number of exceptions to the hearsay rule that provide for the admission of statements because they exhibit certain indicia of reliability that overcome or outweigh the normal risks associated with the inherent dangers of hearsay statements.⁴ Thus where statements display "a circumstantial probability of trustworthiness," 5 Wigmore, supra §§ 1420-22, they are generally admissible. See, e. g., Nicholson v. United States, D.C. App., 368 A.2d 561 (1977) (holding spontaneous utterance admissible).

The declaration against penal interest traditionally was not included among the exceptions to the hearsay rule.⁵ See McCormick, supra § 278, at 673; 5 Wigmore, supra § 1476, at 283. Indeed, for a number of years, the majority of American courts totally rejected statements against the declarant's penal interest while admitting declarations against pecuniary and proprietary interest. See McCormick, supra §§ 277-78, at 671-73; 5 Wigmore, supra § 1476, at 283-88. Most commentators have concluded that the distinction drawn between declarations against pecuniary and proprietary interest and those against penal interest is an historical accident. This distinction was first made by the House of Lords in the Sussex Peerage Case, 8 Eng. Rep. 1034 (H. L. 1844). Both Wigmore and McCormick state that the House of Lords ignored prior English precedent which held that declarations against penal interest were admissible as an exception to the hearsay rule. See McCormick, supra § 278, at 678; 5 Wigmore, supra § 1476, at 283.

Despite the fact that there was little support for the view that declarations against penal interest were less reliable than declarations against pecuniary or proprietary interest, the federal courts and the majority of state courts in this country adopted the rule of the Sussex Peerage Case. See, e. g., Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). See generally Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, 56 B.U.L.Rev. 148, 148-49 & n. 4 (1976).

The primary rationale for the rule of evidence totally rejecting the declaration against penal interest exception states that to admit such statements would...