UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________
NO.
_____________________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
xxxxxxxxxxxxxxxxxx,
Appellant.
_____________________________________________
REPLY BRIEF FOR APPELLANT
_____________________________________________
PRELIMINARY STATEMENT
As to matters not discussed herein, Mr. xxxxxxxxx rests on his opening brief.
SUMMARY OF ARGUMENT
The Government concedes in its brief that the trial judge committed "obvious
error" in admitting, over defense counsel's hearsay objection, Officer Bell's
rebuttal testimony that William xxxxx, Mr. xxxxxxxxx's alibi witness, told Bell before
trial that Mr. xxxxxxxxx had left his car repair shop by 5:00 on the day of the alleged
crimes, rather than around 6:00, the time xxxxx testified to at trial. The Government
contends, however, that the hearsay objection was insufficient to require limiting
instructions and that Mr. xxxxxxxxx was insufficiently prejudiced to qualify for a finding
of plain error. The first contention ignores precedents where this Court has reversed for
hearsay violations in similar circumstances. The second contention ignores the unique
importance of xxxxx's alibi testimony to Mr. xxxxxxxxx's defense.
ARGUMENT
ALTHOUGH THE GOVERNMENT CORRECTLY CONCEDES THAT THE JUDGE COMMITTED "OBVIOUS
ERROR" IN ADMITTING THE ALIBI WITNESS'S PRIOR INCONSISTENT STATEMENT WITHOUT
INSTRUCTIONS LIMITING ITS FUNCTION TO IMPEACHMENT, THE GOVERNMENT MISTAKENLY CONCLUDES
THAT THE JURY'S SBSTANTIVE USE OF THE STATEMENT WAS NOT UNFAIRLY PREJUDICIAL.
Rather inconspicuously, but still unequivocally, the Government concedes in its brief that the error discussed in Point I of Mr. xxxxxxxxx's opening brief (Brief for Appellant ("AB") at 23-27) "was error and . . . the error was obvious" (Brief for Appellee ("GB") at 29). The Government contends, however, that the error was inadequately preserved for appellate review and that the prejudice to Mr. xxxxxxxxx was insufficient to satisfy the plain error standard. Both contentions lack merit.
A. Defense counsel's "hearsay" objection to the evidence and the judge's admission of it on an incorrect ground obviated the need for a separate request for limiting instructions.
The Government's only rebuttal witness was Officer Donald Bell. The subject of his testimony was his visit to alibi witness William xxxxx sometime before trial. As he testified to what xxxxx told him about Mr. xxxxxxxxx's presence at xxxxx's shop on the day in question, defense counsel interrupted as follows:
Mr. Stiller [Defense Counsel]: Your Honor, I would object. That's hearsay.
The Court: Mr. xxxxx has already testified. Overruled, Sir.
Mr. Stiller: He testified to a conversation --
The Court: He is testifying to his conversation with Mr. xxxxx and Mr. xxxxx testified as to his conversation with Officer Bell.
Please proceed.
(Tr. 508) Bell went on to assert that xxxxx told him he was "quite sure" that Mr. xxxxxxxxx left his shop at about 5:00 p.m. and that xxxxx did not waver in that purported recollection when Bell pressed him (Tr. 509).
During the above colloquy, which the jury apparently heard, neither the prosecutor nor the judge articulated the correct rationale for admitting Bell's ensuing testimony about the statement: that it was admissible as non-hearsay because it impeached xxxxx's testimony for the defense that Mr. xxxxxxxxx had left around 6:00. By linking Bell's testimony about the conversation generally with xxxxx's, the judge intimated a rationale of reciprocity, rather than impeachment, as though the defense had "opened the door" to all testimony about the conversation by eliciting xxxxx's testimony about it. (1) But no such justification exists for admitting out-of-court statements of this type. (2)
It follows that Bell's testimony, as admitted, was indeed hearsay, as defense counsel protested. If the judge had responded to the objection by saying that the testimony was being admitted for impeachment purposes only, then it would have been incumbent on defense counsel to request limiting instructions. But as matters stood, counsel's objection, which indisputably met the requisites of Fed. R. Crim. P. 51, (3) was correct and complete. It then became the judge's duty to render the alleged statement non-hearsay by issuing limiting instructions.
The Government wishfully suggests that Mr. xxxxxxxxx's claim on appeal is "completely different" from that encompassed by his hearsay objection below (GB at 28 n.12.). For this proposition, the Government cites United States v. Harley, 990 F.2d 1340, 1343 (D.C. Cir.), cert. denied, 114 S.Ct. 236 (1993). That case is inapposite, because there, defense counsel clearly made the wrong objection below. The case in point is Cannady v. United States, 351 F.2d 796, 797-798 (D.C. Cir. 1965), where this Court performed an analysis like that urged here, and it reversed the conviction. The defendant in Cannady testified that he had been in his hotel at the time of the crime and denied on cross-examination that he had heard Fields, his companion at the time of his arrest, tell police otherwise. Defense counsel's objection to that line of questioning as "hearsay" was overruled, and the prosecutor then presented police testimony that Fields had said he was in the hotel room during the interval in question, while the defendant was not. The Court wrote:
Such testimony concerning Fields' statement obviously did more than question appellant's credibility. It undermined his alibi. Moreover, the trial judge did not give an instruction to the jury limiting its use of the evidence to impeachment purposes. As the case was given to the jury, the reports of Fields' out of court statement could be given the same weight as sworn testimony by Fields. This clearly was improper. . . .
Id. at 798. Accord United
States v. Wright, 489 F.2d 1181, 1187-1188 (D.C. Cir. 1973). In finding a hearsay
rule violation, the Court in Cannady cited
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