US v. Hammond

• Decision Date: 15 August 1996
• Docket Number: 94-CO-1412.,No. 94-CO-1411,94-CO-1411
• Citation: 681 A.2d 1140
• Parties: UNITED STATES, Appellant, v. Navarro HAMMOND, Appellee. UNITED STATES, Appellant, v. Chester C. WRIGHT, Appellee.
• Court: D.C. Court of Appeals

681 A.2d 1140

UNITED STATES, Appellant, v. Navarro HAMMOND, Appellee.

UNITED STATES, Appellant, v. Chester C. WRIGHT, Appellee.

Nos. 94-CO-1411, 94-CO-1412.

District of Columbia Court of Appeals.

Argued April 22, 1996.

Decided August 15, 1996.

Roy W. McLeese, III, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Assistant United States Attorney, were on the brief, for appellant.

Christopher S. Merriam, with whom Shawn Moore was on the brief, Washington, DC, for appellee Navarro Hammond.

Larry Gordon, for appellee Chester C. Wright.

Before WAGNER, Chief Judge, and SCHWELB and KING, Associate Judges.

SCHWELB, Associate Judge:

The United States has appealed from several evidentiary rulings in which the trial judge redacted portions of various statements offered against appellees Hammond and Wright under the exception to the hearsay rule for declarations against penal interest. The proffered statements were made by the appellees' former co-defendants, and the redacted portions refer to the alleged criminal conduct of third parties, including Hammond and Wright. The government contends that the trial judge erroneously interpreted Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), as establishing a categorical rule that a declarant's references to the criminal conduct of others can never be against the penal interest of the declarant.

Hammond challenges the court's jurisdiction to hear this appeal. On the merits, both Hammond and Wright argue that the trial judge correctly applied the principles set forth in Williamson. We conclude that this appeal is properly before us, and that the trial judge misconstrued Williamson as creating a per se rule barring admission, under the hearsay exception for declarations against penal interest, of any statement which refers to the criminal conduct of a third party. We therefore reverse the orders appealed from and remand for further proceedings consistent with this opinion.

I. THE TRIAL COURT PROCEEDINGS

On June 29, 1992, Hammond and Wright were charged in a ten-count indictment with, inter alia, the premeditated murder of correctional officer Ronald Richardson on October 7, 1991.¹ The indictment charges that Hammond and Wright, along with former co-defendants Sweet, Pleasant, and Page, conspired to murder Richardson to prevent him from testifying against Page in a criminal case.

During the course of pretrial proceedings, the government sought to introduce into evidence, under the exception to the hearsay rule for declarations against penal interest, various statements which were made by appellees' former co-defendants and which implicated Hammond and Wright in Richardson's murder. The trial judge directed the parties to file submissions regarding the admissibility of the statements, and she heard oral argument on the issue during an extended pretrial hearing. The judge orally ruled on the admissibility of most, but not all, of the proffered statements. Specifically, the judge made the following rulings:

1. Sweet's statement to a police detective that he was a "hit man" and that he had committed murder before was admitted, but the portion of Sweet's statement which indicated that he was a hit man for Hammond was redacted.

2. Sweet's statement to a civilian witness that he shot Richardson in the body with a.380 caliber handgun was admitted, but the portion of Sweet's statement which declared that Wright also shot Richardson in the head was redacted.

3. Pleasant's statement to his cousin that he drove the shooters in a van to the scene of the murder was admitted, but the following portions of the statement were redacted: a) that Sweet and Wright were the shooters whom Pleasant drove to the scene; b) that Pleasant waited for Sweet and Wright while the two men committed the murder; c) that Pleasant drove Sweet and Wright away from the scene; and d) that Sweet and Wright should "take their beef" because Pleasant wasn't the trigger man.

4. The word "we" was redacted from Pleasant's statement to his cousin that "we got one around your way."

5. The portions of Sweet's statement to a civilian witness which described his own role in Richardson's murder were admitted, but the portions referring to the conduct of Wright and Pleasant were redacted.

This appeal followed.

II. APPEALABILITY

Hammond contends that we should not reach the merits of this appeal because the government is not seeking review of specific trial court rulings, but rather is prematurely asking this court for an advisory interpretation of Williamson, supra. Hammond's jurisdictional challenge is twofold. First, he claims that the government has failed to identify specific pieces of evidence excluded by the trial judge, and draws our attention to the fact that the government noted this appeal before the judge had ruled on all of the proffered statements. Second, with respect to the statements already ruled on, Hammond argues that, even if the trial judge's interpretation of Williamson was erroneous, "there is no evidence that after a remand, the trial judge's rulings would or should be any different."

Section 23-104 (a)(1) of the District of Columbia Code authorizes the government to appeal before trial from an order which

suppresses evidence, or otherwise denies the prosecutor the use of evidence at trial, if the United States Attorney ... conducting the prosecution ... certifies to the judge ... that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant.

D.C.Code § 23-104(a)(1) (1996). In this case, the trial judge has orally ruled on the admissibility of several of the proffered statements, and has held that certain portions of them will not be received in evidence. The statute authorizes the United States to appeal under these circumstances regardless of whether or not the judge has ruled on the admissibility of all of the evidence as to which the parties disagree. So long as the statutory elements are satisfied with respect to the challenged rulings, the statements on which the judge has not yet ruled are irrelevant for purposes of this appeal.

The United States Attorney certified to the trial judge that appeal was not being taken for the purpose of delay, and that the rulings that the judge has made will result in the exclusion of evidence which constitutes "substantial proof" of the charges pending against Hammond and Wright.² This certification is all that the jurisdictional statute requires. See District of Columbia v. McConnell, 464 A.2d 126, 128 (D.C.1983) (holding that "the government may appeal from any pretrial evidentiary ruling excluding or suppressing evidence, provided that the terms of Section 23-104(a)(1) are met, i.e., the government must make the proper certification.").³

Hammond's second argument is more troubling. The government challenges the trial judge's legal ruling, i.e., her interpretation of Williamson, but does not ask us to decide on this appeal whether the evidence is admissible. Rather, the government seeks a remand with directions to the judge to reconsider the admissibility of the proffered statements and to apply the correct legal standard.

"The legislative history of Section 23-104(a)(1) provides for liberal construction of the phrase `or otherwise denies the prosecutor the use of evidence at trial.'" Id. at 129; see also United States v. Jones, 423 A.2d 193, 195 (D.C.1980). In this case, the judge's rulings had the immediate effect of denying the prosecutor the use at trial of the redacted portions of the proffered statements. Compare United States v. Shields, 366 A.2d 454, 456 (D.C.1976) (Section 23-104(a)(1) not applicable where the trial judge's ruling, made in the course of granting a severance motion, had no "law-of-the-case effect at a subsequent trial" and was merely "an advisory opinion on the admissibility of evidence if offered at trial"). If the government had not appealed when it did, the trial would have proceeded, and the portions of the statements which incriminated Wright and Hammond would have been excluded. Although, even under these circumstances, the government might perhaps have taken steps to make the appeal more concrete in character, we conclude that the case is nevertheless ripe for appellate consideration.⁴

We recognize that, in enacting Section 23-104(a)(1), "Congress did not intend to authorize appellate `dress rehearsals' of any and all evidentiary issues." McConnell, supra, 464 A.2d at 130. Nevertheless, Congress did intend "to implement a procedure whereby the government may appeal significant adverse evidentiary rulings before trial, without which appellate review is plainly foreclosed." Id. Giving the statutory language a liberal construction, as we must, we hold that the trial judge's rulings are appealable under Section 23-104(a)(1), notwithstanding the possibility that the evidence may ultimately be excluded at trial under the correct standard. A contrary reading would run afoul of "the policy expressed by Congress in favor of facilitating government appeals" under Section 23-104(a)(1). Id. (quoting United States v. Barletta, 644 F.2d 50, 60 (1st Cir.1981)).

III.

THE DECLARATION AGAINST PENAL INTEREST EXCEPTION

A. Williamson.

In Laumer v. United States, 409 A.2d 190 (D.C.1979) (en banc), this court adopted the declaration against penal interest exception to the hearsay rule. We held that "a statement tending to expose the declarant to criminal liability and offered as tending to exculpate the accused is admissible when the declarant is unavailable and corroborating circumstances clearly indicate the trustworthiness of the statement." Id. at 199 (emphasis in original). We "adopted the test contained in Fed.R.Evid. 804(b)(3)," id., and later adhered to that approach "for purposes of determining the admissibility of declarations against penal interest by...