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Admittance of hearsay evidence harmless error, rules 7th Circuit

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The out-of-court testimony of a woman who said she purchased crack cocaine from a man who was on supervised release should not have been admitted during the man’s hearing regarding revoking his release, the 7th Circuit Court of Appeals held Wednesday. But this was a harmless error because the circumstantial evidence supports that the man dealt crack cocaine to the woman.

Munster Police Detective Timothy Nosich drove by a car containing Lorenzo Mosley and Sheryl Simmons. Nosich noted the woman left the car quickly after he passed by. Nosich followed Mosley’s car and pulled him over for a traffic violation. He found marijuana, crack cocaine and a large amount of cash in the car or on Mosley.

Shortly thereafter, police spoke with Simmons, who was carrying a bag of pot scrubbing pads – which are commonly used as filters in crack pipes. She turned over four little yellow baggies that contained the crack cocaine and said she already used the fifth bag she purchased.

When arrested for driving on a suspended license, Mosley was on supervised release. His probation officer sought revocation of the release and alleged several offenses, including distributing cocaine. Mosley disputed this alleged violation, because if the judge found it to be true, he would spend longer time in prison.

The District Court allowed Nosich to testify regarding what Simmons had told him and played a video of her being interviewed for the judge. Mosley objected, but the judge allowed it. Simmons did not testify in person. The judge ordered Mosley sentenced to 21 months in prison.

“In this case, the district court failed to balance Mosley’s constitutional interests in confrontation and cross-examination with the government’s reasons for not producing the witness. This was an error under Rule 32.1. Further, we cannot conclude that the district court would have admitted the hearsay if it had properly balanced the interests because, even if the hearsay was reliable (which we think it was), the government has offered no reason whatsoever for failing to produce Simmons. Accordingly, there is nothing in the record to balance against Mosley’s interest,” Judge Daniel Manion wrote in United States of America v. Lorenzo Mosley, 13-3184.

But this error was harmless because the violation of supervised release would have been found even without the hearsay evidence. The government presented strong circumstantial evidence that Mosley had sold Simmons the drug. The detective witnessed what he believed to be a drug deal and Mosley had a history of selling crack cocaine in little yellow baggies – the same kind that Simmons surrendered to police.
 

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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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