A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.
No. 73-1897
United States Court of Appeals, Fifth Circuit
May 6, 1974
Rehearing En Banc Granted June 17, 1974.
493 F.2d 923
“A criminal statute is to be construed strictly, not loosely. Such are the teachings of our cases from United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37, down to this day. Chief Justice Marshall said in that case:
‘The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ Id., p. 95.
The fact that a particular activity may be within the same general classification and policy of those covered does not necessarily bring it within the ambit of the criminal prohibition. United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872.”
Moreover, “one is not to be subjected to a penalty unless the words of the statute plainly impose it,’ Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790. ‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 97 L.Ed. 260.” United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971). See Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
These principles, when added to our conclusions regarding the structure and legislative history of
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
WISDOM, Circuit Judge:
A. C. Park, the petitioner-appellant, was convicted in a Georgia court of murdering a local prosecuting attorney. The evidence against him consisted of hearsay statements introduced under Georgia‘s co-conspirator exception to the hearsay rule. After his conviction was affirmed by the Georgia Supreme Court, Park sought federal habeas corpus relief. The district court denied Park‘s petition. The hearsay testimony introduced against Park was “crucial” and “devastating” under Dutton v. Evans, 1970, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213; it was unreliable; and the State made no showing that the declarants were unavailable to testify at trial. The introduction of the hearsay testimony, therefore, violated the accused‘s sixth amendment right of confrontation. We reverse.
I.
Between 7:00 and 7:30 in the morning on August 7, 1967, Floyd Hoard, the Solicitor General of the Piedmont Judicial Circuit in Georgia, was killed when dynamite wired to the ignition system of his car exploded. After a four-month investigation, a grand jury in Jackson County, Georgia, indicted five persons for the murder: Douglas Pinion, J. H. Blackwell, Loyd George Seay, George Ira Worley, and Park. The prosecution‘s theory was that the killing had been accomplished through a three-tiered conspiracy—Blackwell, Seay, and Worley had purchased the dynamite and wired it to the coil of Hoard‘s car; Pinion had paid the three $5,500 for the murder;1 and Park had been the prime mover of the project and had furnished at least $5,000 of the purchase price. As a motive for the killing, the State postulated Hoard‘s recent law-enforcement activities against Park, Pinion, and Seay, who were operating on a large scale the business of selling liquor in a dry county. Hoard had had Park‘s home and an adjacent building raided, had instituted padlock proceedings against Park, had confiscated a great quantity of illegal alcohol, and had filed criminal charges against Park. Park had paid fines totalling $6,300. Park, Pinion, and Seay had been engaged in their illegal liquor business for many years. There was testimony that Pinion acted as Park‘s “enforcer” and that he used guns and administered beatings in the prosecution of their illicit business. On the day of his death Hoard had planned to present evidence against the liquor conspiracy to a grand jury.
Seay and Blackwell pleaded guilty to murder; Pinion and Worley were convicted of murder after trial. All were sentenced to life imprisonment. Park entered a plea of not guilty and was tried separately. He denied any knowledge of the murder and stated to the jury that he had not seen or talked with Seay for at least two years before Hoard‘s death.
Worley and Pinion did not testify at Park‘s trial. Blackwell and Seay testified for the State1. Blackwell‘s testimony was largely corroborative; he had never seen nor talked with Park. But Seay‘s testimony was determinative. Indeed, the only evidence directly implicating Park in the slaying came from Seay‘s lips. Seay related several critical conversations he had had with other alleged members of the conspiracy. The testimony most damaging to Park were out-of-court declarations by Pinion. According to Seay, Pinion told him that “a man” wanted Hoard “done away with”
Park was found guilty and sentenced to death. The Georgia Supreme Court reversed, because Park had been improperly deprived of his right to make the opening and closing argument to the jury3.
At Park‘s second trial the State called Blackwell as a witness. He refused to be examined on any matter, stating, “I stand on the Fifth Amendment“. His sworn testimony at the original trial was read to the jury. An agent of the Georgia Bureau of Investigation, testifying for the State, related the contents of a confession Blackwell had given to him. The statement did not refer, even inferentially, to Park.
Seay was also again called as a witness for the State. After stating his name and place of incarceration, he refused to answer further questions, relying on his fifth amendment privilege against self incrimination. Over Park‘s objection, the State read to the jury the transcript of Seay‘s testimony at the first trial. Later, Seay was recalled to the witness stand, and on direct examination he repeated his testimony concerning his conversations with Pinion and Worley4. Seay‘s testimony with regard to these critical conversations was introduced a third time through an agent of the Georgia Bureau of Investigation, who related the content of Seay‘s confession to him. Neither Pinion nor Worley was called as a witness. Park was again convicted and sentenced to death, and this time the Georgia Supreme Court affirmed5. The United States Supreme Court, without ruling on the merits, vacated the judgment insofar as it left undisturbed the death penalty
II.
“Hearsay” is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted“.
Implied assertions may in certain circumstances carry less danger of insincerity or untrustworthiness than direct assertions, see United States v. Pacelli, 2 Cir. 1974, 491 F.2d 1108 at 1116, but not always. The danger of insincerity or untrustworthiness is decreased only where there is no possibility that the declarant intended to leave a particular impression. Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682, 686 (1962); Rucker, The Twilight Zone of Hearsay, 9 Vand.L.Rev. 453, 478 (1956). Here we cannot exclude that possibility10; Pinion‘s and Worley‘s
When the possibility is real that an out-of-court statement which implies the existence of the ultimate fact in issue was made with assertive intent, it is essential that the statement be treated as hearsay if a direct declaration of that fact would be so treated. Baron Parke made an observation to that effect more than a century ago in the famous case of Wright v. Tatham, 1837, 7 Adolphus & E. 313, 388-389, 112 Eng.Rep. 488, 516-17:
“[P]roof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible“.
Were the rule otherwise, the hearsay rule could easily be circumvented through clever questioning and coaching of witnesses, so that answers were framed as implied rather than as direct assertions. The federal courts have consistently considered such implied assertions to be hearsay. See Krulewitch v. United States, 1949, 336 U.S. 440, 442, 69 S.Ct. 716, 93 L.Ed. 790; United States v. Pacelli, 491 F.2d at 1116-1117; Favre v. Henderson, 464 F.2d at 362; United States v. Williamson, 450 F.2d at 590. Georgia treats implied assertions similarly. When the Georgia Supreme Court considered the issue in the two Park cases, the Court assumed that Seay‘s testimony as to Pinion‘s and Worley‘s statements was hearsay.
III.
Classified as hearsay, Seay‘s recitation of his conversations with Pinion and Worley was admitted into evidence under Georgia‘s co-conspirator exception to the hearsay rule.11 The Georgia Code provides that “[a]fter the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”
That Seay‘s testimony was admissible under Georgia‘s co-conspirator exception does not, however, assure that the testimony was properly admissible when viewed against the constitutional standard of the confrontation clause of the sixth amendment. “[P]roper admission of evidence under an exception to the hearsay rule does not relieve a federal court considering a state criminal conviction from the responsibility for
Testimony may be introduced in violation of the hearsay rule without violating the accused‘s right of confrontation, and testimony introduced under a traditional state exception to its hearsay rule may run afoul of the constitutional provision. The lesson is a plain one: whereas a state‘s hearsay rule and its exceptions may be administered by rote, the confrontation clause is responsive to the real and varying needs of the trial process. As Justice Stewart observed in Dutton:
“The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936, 26 L.Ed.2d at 499.” 400 U.S. at 89.
The appellee urges us to compare Seay‘s hearsay testimony with the federal co-conspirator exception, implying that if we found Seay‘s testimony admissible under the federal rule, our analysis would need to proceed no further. The thrust of this suggestion is that the federal hearsay rule and its exceptions provide a constitutionally acceptable minimum protection to the accused under the confrontation clause and that only testimony which falls outside the federal boundaries need be examined more closely under Green and Dutton. For this proposition the appellee relies on language in the plurality opinion in Dutton: “Appellee does not challenge and we do not question the validity of the coconspirator exception applied in the federal courts.” 400 U.S. at 80. It is true, as the appellee here points out, that the First Circuit has read that language as a statement that evidence admitted in federal court under the federal co-conspirator exception automatically complies with the requirements of the confrontation clause. See Ottomano v. United States, 1 Cir. 1972, 468 F.2d 269, 273, cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260; United States v. Clayton, 1 Cir. 1971, 450 F.2d 16, 20, cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250. But the Second Circuit has recently rejected that interpretation of Dutton. See United States v. Puco, 2 Cir. 1973, 476 F.2d 1099, rehearing en banc denied, id. at 1111, cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82. Although the other circuits, including our own, have continued to apply the federal co-conspirator exception, none has unequivocally decided whether evidence introduced under the exception may in certain circumstances violate the confrontation clause.13
In any event, whether the testimony would be admissible under the federal rule is not the proper inquiry. To place Seay‘s testimony against the wooden framework of the elements of the federal exception, and to have affirmance or reversal of Park‘s conviction depend on the fit, would remove the analysis twice over from the real issue, the “accuracy of the truth-determining process.” Dutton v. Evans, 400 U.S. at 89. Dutton and Green clearly indicate that, at least where the state‘s co-conspirator exception is more expansive than the federal, the proper approach for federal courts on habeas corpus review of a state criminal conviction is to consider on a case-by-case basis whether the testimony meets the more general tests of reliability outlined in those opinions.
The Court endorsed a case-by-case approach in Dutton. In that case the respondent, Evans, was tried in a Georgia court for the murder of three police officers. Part of the evidence against him was the hearsay testimony of a cellmate of one of his co-defendants. The witness related that when Evans’ co-defendant returned from his arraignment, he stated: “If it hadn‘t been for that dirty son-of-a-bitch Alex Evans, we wouldn‘t be in this now.” The declaration, concededly made during the concealment phase of the criminal venture, was admitted as evidence, and its admission was upheld by the Georgia Supreme Court under the Georgia co-conspirator exception to the hearsay rule. When the
The proper test by which to measure state hearsay exceptions under confrontation-clause attack has been variously stated. (1) Does the trier of fact have “a satisfactory basis for evaluating the truth of the prior statement“? California v. Green, 399 U.S. at 161, quoted in Dutton, 400 U.S. at 89. (2) How “real” is the possibility that cross examination “could conceivably have shown the jury that the statement, though made, might have been unreliable“? Dutton v. Evans, 400 U.S. at 89. (3) What “indicia of reliability” were present to permit the testimony to be placed before the jury although there was no confrontation of the declarant? Id. Each of these queries amounts to the same thing; each is an articulation of a search for trustworthiness and accuracy. Although the Supreme Court has not thereby provided precise standards by which to test the constitutionality of the admission of testimony under state hearsay exceptions,15 by bracketing the target if not by a direct hit, the Court has made its meaning clear enough to convince us that we must overturn Park‘s conviction in this case. “[S]trict compliance with the confrontation clause—presenting the statement whose truth is at issue under oath, in the presence of the trier of fact and the defendant, and subject to cross-examination—provides the required ‘satisfactory basis‘” for admission of hearsay. The Supreme Court, 1970 Term, 85 Harv.L.Rev. 40, 191 (1971).
Commentators have frequently noted the inherent unreliability of hearsay statements implicating an alleged co-conspirator in the conspiracy, for example:
“The invocation of a name may be gratuitous, may be deliberately false in order to gain advantages for the declarant greater than those that would flow from naming a real participant or none at all, may be a cover for concealment purposes . . . or may represent an effort to gain some personal revenge.”
Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378, 1396 (1972). See also Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1165-66 (1954); Comment, The Hearsay Exception for Co-Conspirators’ Declarations, 25 U.Chi.L.Rev. 530, 540, 541 (1958); Note, Preserving the Right to Confrontation, 113 U.Pa.L.Rev. 741, 756 (1965). On the record in this case, Seay‘s statement implicating Park in the plot to kill Hoard is the kind of testimony that illustrates well the wisdom of these perceptions.
Pinion had substantial motive to fabricate the involvement of the “old man” in the conspiracy. By implying to Seay that Park was behind the conspiracy, Pinion could add the “old man‘s” prestige to the undertaking and perhaps bolster Seay‘s hope that the plot was well-conceived and that the chances of apprehension were slim. In addition, by implying that Park was the source of the capital, Pinion could avoid further pressure to add to the pot. (I. e., “You know that if it were up to me, I would give you more, but my hands are tied“.16) To be sure, through cross-ex
Pinion‘s possible insincerity in implying Park‘s involvement in the conspiracy was not effectively counterbalanced by indicia of reliability. In Dutton the Court found present two of the most valuable indicia: the declarant‘s statement was spontaneous and against his penal interest. Here there were no such safeguards as to Pinion‘s sincerity. Pinion could have carefully contrived his reference to Park, and the reference to the “old man” was not against Pinion‘s penal interest.17 There was no reason to suspect that Pinion‘s live testimony, and his cross-examination, would not have helped significantly to assure that the jury had “a satisfactory basis for evaluating the truth” of Pinion‘s statements. California v. Green, 399 U.S. at 161. Cross-examination is “the essential right secured by the Confrontation Clause“. Douglas v. Alabama, 380 U.S. at 420.
The jury could similarly have profited from cross-examination of Worley concerning his statement that the “old man” would have “something done” to Seay or his family if he attempted to back out of the murder plot. First, Pinion may have been in league with Worley to fabricate Park‘s involvement, and, as with Pinion‘s conversation, there were no indicia of reliability reflecting on Worley‘s sincerity. Second, Worley‘s statement may have represented what Pinion told him or what he surmised from the fact that Pinion generally worked for Park. We find no hint in the record that Worley had personal knowledge that Park was involved. Compare Dutton v. Evans, 400 U.S. at 88. We believe that the source of Worley‘s opinion that Park was a member of the conspiracy to murder Hoard was essential to the jury‘s consideration of the statement. When Park was denied the opportunity to cross-examine Worley, he was denied his right of confrontation.
If the record reflected that Worley and Pinion were unavailable to testify at Park‘s trial, we would face a considerably different question. Necessity has long been one of the factors in confrontation clause analysis. In Mattox v. United States, 1894, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, the petitioner had undergone a conviction, reversal, retrial, and reconviction. Two of the government‘s witnesses who testified at the first trial had died before the second. The reporter‘s notes of their original testimony were read to the jury at the second trial. In response to Mattox‘s sixth amendment challenge, the Court said: “[G]eneral rules . . . how ever beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.” 156 U.S. at 243. Permitting Mattox to go “scot free” simply because the witnesses providing the strongest proof against him were dead “would be carrying his constitutional protection to an unwarrantable extent“. Id. Where declarants are unavailable to testify, federal courts have continued to balance the requirements of criminal prosecutions against the confrontation rights of defendants. “[T]here may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the de
There is no evidence before us, however, that either Worley or Pinion was in fact unavailable to testify. The State concedes in its brief that both Worley and Pinion were serving life sentences in Georgia prisons at the time of Park‘s second trial.18 Compare Mancusi v. Stubbs, 1972, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293. And there was no significant likelihood that either Worley or Pinion would have successfully refused to testify on Fifth Amendment grounds. Compare Hoover v. Beto, 5 Cir. 1972, 467 F.2d 516, 540 (en banc), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673. One may fairly infer that the State did not call Pinion and Worley as witnesses simply because of an apprehension that they would exculpate Park on the stand, perhaps by denying that they ever made the state
We recognize that Dutton did not require the prosecutor to make a showing of why the declarant was not called to testify. Although the plurality did not expound on the matter, the answer seems to lie with two factors: the testimony carried strong indicia of reliability20 and was neither “crucial” to the prosecution‘s case nor “devastating” to accused.21 We have already discussed the unreliability of the co-conspirator declarations in this case. It is also clear to us that they were “crucial” and “devastating“. The statements by Pinion and Worley formed the only evidence that linked Park directly to the murder. Without either statement the prosecution would have had no case; with only one the prosecution‘s case would have lacked corroboration and would have been severely weakened. That the statements were “devastating” to Park is obvious.22
Considerations of elemental fairness23 and of the “accuracy of the truth determining process” demand that we prevent the substitution of devastating, unrelia
That the defendant Park could have called Pinion and Worley as witnesses does not affect our holding. The burden of producing witnesses to meet the accused‘s right of confrontation falls on the State. The alternative of the defendant‘s calling the declarants was not an adequate substitute: On cross-examination the defendant has greater freedom in questioning a witness, such as the right to use leading questions; and the State can impeach the witness with evidence of prior crimes; repetition of the hearsay, on cross-examination by the State, will increase its impact. See Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 1, 195 (1971). We endorse the Seventh Circuit‘s view:
“It seems to us . . . that where an extrajudicial declaration is used under circumstances such that the opportunity to cross-examine the declarant is essential to a defendant‘s right of confrontation, it must be the government‘s burden to produce the declarant. Mere availability, in the sense that the defendant could have subpoenaed him, does not, in our opinion, suffice.”
Simmons v. United States, 7 Cir. 1971, 440 F.2d 890, 891. This Court has previously adopted a similar approach. In Hoover v. Beto, 5 Cir. 1971, 439 F.2d 913, rev‘d on other grounds en banc, 1972, 467 F.2d 516, cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673, the State introduced hearsay testimony of a principal‘s oral confession in the trial of an alleged accomplice. With regard to the State‘s argument that the defendant could have called the principal to the stand, the panel said:
“The State did not call [the principal] Sellers as a witness, and it has failed to meet the requirements for applying California v. Green, supra. The inference to be drawn is that the State was apprehensive that Sellers would recant his confession or refuse to testify. The State evidently did not want to be in the position of introducing the confession by way of impeaching or rebutting Sellers’ testimony. It preferred to introduce the confession in its case in chief and put the burden of rebuttal on the defense.
That Sellers was available to be called as a witness does not mitigate the prosecution‘s misconduct here. The State sought to shift to the defendant the risk of calling Sellers to the stand. To accept the State‘s argument that the availability of Sellers is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused. Hoover‘s undoubted right to call Sellers as a witness in his behalf cannot be substituted for his Sixth Amendment right to confront Sellers as a witness against him.”
Although the Dutton plurality opinion and Justice Harlan‘s concurring opinion include passing references in footnotes to the fact that the accused could have called the declarant to testify,25 neither the plurality nor Justice Harlan relied on this fact in holding that the accused‘s constitutional rights were not violated.
Park‘s conviction must be vacated. Unless the State commences prosecution of the case within a reasonable time, the writ shall issue.
Reversed and remanded.
COLEMAN, Circuit Judge (dissenting):
I respectfully dissent.
Park has twice run the gauntlet of Georgia trials and appeals involving a particularly heinous form of murder.
The sole issue for us, as a federal habeas corpus court, is whether Park has been denied the right of confrontation guaranteed by the United States Constitution. The majority opinion analyzes the factual issues and the inferences reasonably to be drawn therefrom [ordinarily the function of the trial jury] and concludes that Park was unconstitutionally deprived of confrontation.
In many respects, I disagree with the factual analysis and I respectfully disagree with the legal conclusion.
I think the evidence very clearly establishes a motive for Park wishing to get rid of the prosecutor, who paid with his life for his desire to enforce the law against a locally powerful liquor ring. In my view, the motive matches the reprehensible event. We should not consider Park‘s activities as being somehow insulated or immutably partitioned off from each other. They were all part of a common fabric and they ought not to be thus dissipated unless we are to rewrite the law of conspiracy so as to exclude statements of co-conspirators, made outside the presence and hearing of others jointly indicted and jointly prosecuted. I specifically point out that the statements attributed to Park were made before the murder, not afterwards, as in Dutton.
Accordingly, I do not agree with what is being done in this case.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.