Criminal Law Blog

The trial court cannot rely on a statement’s content to determine admissibility under the coconspirator statements hearsay exception


Emanuel Jenkins and Azariah Israel v. United States, Nos. 10-CF-1184 & 10-CF-1232 (decided December 12, 2013)
Players: Judges Glickman and Oberly, Senior Judge Reid.  Opinion by Judge Glickman.  Abram J. Pafford for Emanuel Jenkins.  Richard S. Stolker for Azariah Israel.  PDS as amicus.  Trial judge: Michael Rankin.
Issue 1: Can a trial court admit coconspirator hearsay (for its truth) by considering the alleged coconspirators’ statements themselves?
Facts:  Mr. Israel was found guilty of 2 counts of first-degree murder, three counts of assault with intent to kill, and related firearms charges, in connection with the shooting of several individuals in Columbia Heights in 2005.  Mr. Israel was also found guilty, along with Mr. Jenkins, of the 2006 murder of a witness to the 2005 shooting.  Mr. Jenkins and Mr. Israel were cousins.  The government’s theory was that Mr. Israel committed the first murders/shootings, and then he and Mr. Jenkins conspired to murder the witness while Mr. Israel was in jail pending trial, a plan that Mr. Jenkins carried out.  The government introduced jail phone calls between Mr. Israel and Mr. Jenkins (and others), and admitted the statements for their truth under the coconspirator statements exception to the hearsay rule (statements by Mr. Jenkins and others were admitted against Mr. Israel, statements by others were admitted against Mr. Jenkins).  In determining that the statements were admissible under the coconspirator statements exception, the trial judge considered the content of the coconspirators’ statements.
Holding 1: The coconspirator statements exception requires the judge to find by a preponderance that (1) a conspiracy existed, (2) the defendant had a connection to the conspiracy, and (3) the coconspirator made the statements during the course of and in furtherance of the conspiracy; in making that finding the judge may not consider the alleged coconspirators’ statements themselves.  Beyond the statements themselves, there was not sufficient evidence to make the statements admissible.  The error in admitting the statements for their truth was harmless, except with respect to Mr. Israel’s conviction for obstruction of justice.
Of Note:  The division held that it was bound by prior precedent interpreting this jurisdiction’s coconspirator statement exception, which prohibits the trial judge from considering the statements themselves, specifically Butler v. U.S., 481 A.2d 431 (D.C. 1984).  Butler adopted Federal Rule of Evidence 801(d)(2)(e) (the coconspirator statements exception).  At the time the DCCA issued its opinion in Butler ruling that the content of the statements could not be considered in determining admissibility, there was a split on the issue among federal circuits.  The Supreme Court resolved the split in Bourjaily v. U.S., 483 U.S. 171 (1987), holding that courts can consider the statements themselves in ruling on admissibility.  The Bourjaily holding was based on Federal Rule of Evidence 104 (a), which allows judges to consider hearsay and other inadmissible evidence in ruling on questions of admissibility.  The division here concluded that Butler nonetheless controls: “The Federal Rules of Evidence do not govern proceedings in the local courts of the District of Columbia (except to the extent that [the DCCA], on a case-by-case basis, has chosen or chooses in the future to adopt a specific Rule as local law)” and the DCCA has not formally adopted Rule 104 (a) (although it generally follows the rule).  Thus, Butler can only be overruled if the DCCA considers the issue en banc and adopts the Supreme Court’s Bourjaily reasoning.
Issue 2: Can the trial court consider hearsay statements for their truth in determining the admissibility of other out-of-court, un-confronted testimonial statements under a “forfeiture by wrongdoing” theory?
Facts: The witness-decedent’s un-confronted statements (grand jury testimony and other statements) were admitted for their truth against both defendants.  The trial court concluded the statements were admissible because the defendants had forfeited their Sixth Amendment right to confront the witness and hearsay objections: they had “wrongfully procured the unavailability of the witness with the purpose of preventing the witness from testifying.”  In ruling the statements admissible, the trial court relied on the statements referenced in Issue 1 (the jail calls / alleged coconspirator statements).
Holding 2: The trial court can rely on inadmissible hearsay in determining forfeiture by wrongdoing, i.e. to find the required preponderance of the evidence that the defendants procured the unavailability of the witness by wrongdoing with the purpose of preventing the witness from testifying.
Holding 2 (a): When the trial court makes such a finding it is does not undermine the presumption of innocence, nor does it undermine the judge’s objectivity.
Issue 3: Is there sufficient evidence for carrying a pistol without a license (CPWL) where there is sufficient evidence that the defendant shot the decedent to death and there is un-refuted evidence that the defendant did not have a license to carry a pistol?
Holding 3: No.  There was no evidence that the firearm used to kill the decedent was a pistol, a firearm with a barrel less than 12 inches in length, therefore there was insufficient evidence to convict Jennings of CPWL.
Of note:

  • The Butler rule discussed in Issue 1 applies to the coconspirator statement hearsay exception and does not extend to the forfeiture by wrongdoing exception.

  • The Court also concluded that certain other crimes evidence was properly admitted under the identification exception / as direct evidence (an uncharged murder committed a week before the first charged murders with the same gun, in the same neighborhood, and also – like the first murders – by a lone individual).

  • The government’s view of permissible inferences to be drawn from slang used during the jail calls was prosecution work product and therefore not discoverable.

  • The witnesses’ interpretation of slang on the jail calls was not expert testimony because “they were personally acquainted with appellants [and the decedent] and were members of the milieu in which the slang was used.”

  • The prosecutor did not present herself as an expert witness when she argued in closing one of the permissible interpretations of the slang.

  • The joinder of the first murders with the witness murder was proper under Rule 8(b) because the offenses bore a sequential relationship to each other. --JA