United States v. McDonald ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4766
DONOVAN J. MCDONALD, a/k/a
Diamond,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-97-13-DWS)
Submitted: March 24, 1998
Decided: August 3, 1998
Before WIDENER, MICHAEL, and MOTZ,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Marshall Prince, Assistant United States Attorney, Christopher W.
Seybolt, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Donovan J. McDonald seeks review of his jury convictions for
using and carrying a firearm during and in relation to a drug traffick-
ing crime, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1997),
and possession of a firearm by a convicted felon, in violation of 18
U.S.C.A. § 922(g) (West Supp. 1997).
McDonald's convictions stem from a drug transaction whereby he
provided crack cocaine to Tabatha McCleod who, in turn, gave part
of the crack cocaine to Sonja Byers. Thereafter, McDonald called
Byers demanding payment for the crack cocaine. After informing him
that she did not have the money, McDonald drove to Byers' resi-
dence, along with McCleod and McDonald's girlfriend, Crystal
Moore. While Byers, her common law husband Anthony Rodney, and
her two children were attempting to hide, McDonald fired two shots
through the front window of Byers' home.
Following the shooting the police recorded McDonald apologizing
to Rodney. Thereafter McDonald admitted to the FBI that he fired the
gun that night. The Government then subpoenaed Byers to appear
before the grand jury. Byers' testimony recounted how she sold drugs
obtained from McCleod and that she argued with McDonald regard-
ing the drug money she owed him just before he arrived and fired gun
shots at her home. She said that McCleod had told her that McDonald
goes to peoples' homes and shoots them. Byers testified that she
started cooperating with the police after the shooting and paid Mc-
Cleod the money she owed her. After the payment, Byers testified
that McDonald called and apologized to Rodney for the shooting.
After Byers testified before the grand jury she was accidentally killed
by Rodney in an unrelated matter making her unavailable to testify at
McDonald's trial. At trial, Rodney, McCleod, and Moore testified that
McDonald fired the gun at Byers' home that night. The Government
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also sought to introduce Byers' grand jury testimony. Over defense
counsel's objection, the trial court admitted the testimony pursuant to
Fed. R. Evid. 804(b)(5).
On appeal, McDonald contends that the admission of Byers' grand
jury testimony under the residual hearsay exception of Fed. R. Evid.
804(b)(5), violated his Sixth Amendment rights of confrontation.
Finding no reversible error we affirm.
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him." Despite its absolute
language, the Confrontation Clause "permits, where neces-
sary, the admission of certain hearsay statements against a
defendant despite the defendant's inability to confront the
declarant at trial."
United States v. McHan, 101 F.3d 1027, 1036-37 (4th Cir. 1996)
(quoting Maryland v. Craig, 497 U.S. 836, 844, 847-48 (1990)), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3826 (U.S. June 16, 1997) (No.
96-8994). Under the two-part test articulated by the Supreme Court
in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), before a declarant's
hearsay testimony may be admitted, the Confrontation Clause
requires the Government to show "(1) that the use of the hearsay is
necessary because the declarant is unavailable and (2) that the hear-
say bears `indicia of reliability' sufficient to enable the factfinder to
evaluate the truth of the hearsay." McHan, 101 F.3d at 1037. For
hearsay statements to be admitted under Fed. R. Evid. 804(b)(5), a
showing of "particularized guarantees" of their trustworthiness must
be made. See Roberts, 448 U.S. at 66; see also McHan, 101 F.3d at
1037. This determination is to be made from the totality of the cir-
cumstances that surround the making of the statement and that render
the declarant particularly worthy of belief. See Idaho v. Wright, 497
U.S. 805, 819-20 (1990).
McDonald does not challenge the finding of unavailability, but
does assert that the grand jury testimony does not have sufficient
guarantees of trustworthiness. He suggests that the absence of an
agreement of immunity between Byers and the Government should
decrease the level of reliability. The record does not show that Byers
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sought to minimize her own involvement in the drug activities or that
her statements were self-serving. In fact the record reveals that Byers
admitted her involvement with McDonald which implicated her as a
co-conspirator. McDonald further contends that Byers' testimony was
not reliable because she was compelled to testify before the grand
jury. While it is true that she was subpoenaed, Byers willingly testi-
fied before the grand jury without invoking her Fifth Amendment
right against self-incrimination or without the benefit of a plea agree-
ment.
Byers' statements were made under oath, with a contemporaneous
transcript, and Byers knew that she was subject to prosecution for per-
jury if she lied before the grand jury. Furthermore, the statements that
she made as to her involvement in drug trafficking were against her
penal interests. These factors suggest that the testimony is reliable.
See United States v. Clark, 2 F.3d 81, 85 (4th Cir. 1993). Byers was
not subject to cross-examination during the grand jury proceedings,
but the grand jurors were free to question her. The nature of the grand
jury testimony thus provides some indicia of trustworthiness. See Mc-
Han, 101 F.3d at 1038. Under these circumstances, we find that the
district court's finding regarding trustworthiness was not clearly erro-
neous. Id. (stating standard of review).
In any event, Confrontation Clause violations are subject to review
under the harmless beyond a reasonable doubt standard. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). We find that
even if the district court erred in admitting Byers' testimony, the error
was harmless beyond a reasonable doubt. First, at trial the Govern-
ment established that McDonald possessed and used a gun by shoot-
ing into Byers' home through the eyewitness testimony of Rodney,
McLeod, and Moore. Second, an FBI agent testified that McDonald
admitted that he went to Byers' home and shot two rounds, one up
in the air and one in the ground. Third, both Rodney and McCleod
corroborated Byers' testimony showing that the shooting was caused
by the failure of Byers and Rodney to pay McCleod the money owed
for drugs supplied. Finally, the Government introduced an audio
taped-conversation in which McDonald apologized to Rodney follow-
ing the shooting. Thus, another witness or multiple witnesses testified
to the same facts that Byers did.
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Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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