It was error for the trial judge in a bench trial to rely upon
wrongfully admitted hearsay evidence in finding petitioner guilty
of a federal narcotics offense, but where the judge did not find
petitioner guilty on this evidence alone, the case is remanded to
the Court of Appeals to determine whether the wrongful admission of
the hearsay evidence was harmless error, and if not, whether
petitioner waived objection to it.
Certiorari granted; vacated and remanded.
PER CURIAM.
John David Moore, Jr., was convicted in a bench trial of
possession of heroin with intent to distribute it, in violation of
21 U.S.C. § 841(a)(1). In an unpublished order, the Court of
Appeals summarily affirmed the judgment of conviction.
In early January, 1975, police officers received a tip from an
informant that Moore and others were in possession of heroin at
"Moore's apartment." The police obtained a search warrant and
entered the apartment, where they found Moore lying face down near
a coffee table in the living room. Also present in the apartment
was a woman who was sitting on a couch in the same room. Bags
containing heroin were found both on top of and beneath the coffee
table, and they were seized along with various narcotics
paraphernalia.
At a consolidated hearing on Moore's motion to suppress evidence
and on the merits, the prosecution adduced no admissible evidence
showing that Moore was in possession of the heroin in the apartment
in which he and the woman were found other than his proximity to
the narcotics at the time the warrant was executed. Indeed, one
police officer
Page 429 U. S. 21
testified that he did not find "any indications of ownership of
the apartment." In his closing argument on the merits, however, the
prosecutor placed substantial emphasis on the out-of-court
declaration of the unidentified informant:
"[A] confidential informant came to Detective Uribe and said, 'I
have information or I have -- through personal observation, know
that John David Moore resides at a certain apartment here in El
Paso, Texas, and he is in possession of a certain amount of
heroin.'"
In adjudging Moore guilty, the trial court found that he had
been in close proximity to the seized heroin, that he was the
tenant of the apartment in question, and that he had, therefore,
been in possession of the contraband. In making these findings, the
court expressly relied on the hearsay declaration of the
informant:
"Information revealed by the confidential informant and relied
upon in the preparation of the Affidavit disclosed that John David
Moore was the occupant of Apartment # 60, Building # 7, Hill
Country Apartments, 213 Argonaut, El Paso, Texas."
Defense counsel objected to the court's reliance upon hearsay
evidence, but the judge refused to amend this finding except to add
the phrase "at the time of the seizure" to the end of the
sentence.
There can be no doubt that the informant's out-of-court
declaration that the apartment in question was "Moore's apartment,"
either as related in the search warrant affidavit or as reiterated
in live testimony by the police officers, was hearsay, and thus
inadmissible in evidence on the issue of Moore's guilt.
Introduction of this testimony deprived Moore of the opportunity to
cross-examine the informant as to exactly what he meant by "Moore's
apartment," and what factual basis, if any, there was for believing
that Moore was a tenant or regular resident there. Moore was
similarly
Page 429 U. S. 22
deprived of the chance to show that the witness' recollection
was erroneous or that he was not credible. [
Footnote 1] The informant's declaration falls within no
exception to the hearsay rule recognized in the Federal Rules of
Evidence, and reliance on this hearsay statement in determining
petitioner's guilt or innocence was error. [
Footnote 2]
Although the only competent evidence of Moore's possession of
the narcotics was his proximity to them in an apartment in which
another person was also present and of which he was not shown to be
the tenant or even a regular resident, the Solicitor General now
argues that the error in admitting the hearsay evidence was
harmless. That is far from clear. Whether or not the evidence of
proximity alone, when viewed in the light most favorable to the
prosecution, could suffice to prove beyond a reasonable doubt that
Moore was in possession of the heroin, the fact is that the trial
court did not find Moore guilty on that evidence alone.
The Government suggests that Moore's failure to testify or to
adduce any evidence showing "that his presence in the apartment was
unrelated to the heroin" highlights the alleged harmlessness of the
error, but this suggestion can carry no weight in view of the
elementary proposition that the prosecution bore the burden of
proving beyond a reasonable doubt every element of the charged
offense. Equally unpersuasive is the Government's argument that the
error was probably harmless because Moore was convicted in a bench
trial; whatever the merits of that argument as a general
proposition, it has a hollow ring in a case where the trial judge
expressly relied upon the inadmissible evidence in finding the
defendant guilty.
Page 429 U. S. 23
The petition for a writ of certiorari is granted, the judgment
of the Court of Appeals is vacated, and the case is remanded to
that court so it may determine whether the wrongful admission of
the hearsay evidence was harmless error. [
Footnote 3]
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE
REHNQUIST dissent from summary reversal and would set the case for
oral argument.
[
Footnote 1]
Moore moved to require disclosure of the informant's identity,
but the Government opposed the motion and the trial judge denied
it.
[
Footnote 2]
Although we do not rely on the Government's confession of error,
we note that the Solicitor General concedes that admission of the
hearsay evidence on the question of Moore's guilt or innocence was
improper.
[
Footnote 3]
The Government also urges that petitioner's failure to suggest
in his closing argument that consideration of the hearsay evidence
be restricted to the suppression issue constituted a waiver of any
objection to the District Judge's reliance on that evidence in
determining guilt or innocence. The Court of Appeals has not passed
on this question, and we leave it for resolution by that court on
remand.
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