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finding that a declarant's statement of intent to testify against defendants in a drug case was admissible under Rule 803 and could show defendants motive to kill
Summary of this case from U.S. v. SmallwoodOpinion
Case No. 1:00CR00104
February 26, 2002
Thomas J. Bondurant, Jr. and Anthony P. Giorno, Office of the United States Attorney, Roanoke, Virginia, for United States of America;
Thomas R. Scott, Jr., Street Law Firm, Grundy, Virginia, and Thomas M. Blaylock, Roanoke, Virginia, for Defendant Samuel Stephen Ealy.
OPINION AND ORDER
In this capital criminal case, the government has filed motions in limine seeking permission to introduce a hearsay statement by Robert Davis, one of the murder victims, and prior consistent statements made by any witness whose credibility is challenged by the defense. The government also requests that the court exclude other hearsay statements made by co-defendant Walter Church that serve to exculpate the accused, Samuel Ealy. With respect to the hearsay statement made by Davis, I find that the statement is admissible under the "existing state of mind" exception, Fed.R.Evid. 803(3), and therefore grant the government's motion. I further hold that the statements made by Church, as may be testified to by Ronald Kretzer, Ruby Powers, and Ronnie Pennington, do not fall within the "statement against interest" exception, Fed.R.Evid. 804(b)(3), and must be excluded at trial. Finally, because of the difficulty of determining in advance whether a proper foundation will be laid at trial, I reserve ruling on the admissibility of the prior consistent statements under Fed.R.Evid. 801(d)(1)(B).
I. INTRODUCTION.
Preliminary rulings on the admissibility of hearsay evidence, as authorized by Federal Rule of Evidence 104, are often made prior to trial in response to motions in limine filed by the parties. See, e.g., United States v. Shaw, 69 F.3d 1249, 1252 (4th Cir. 1995) (pretrial ruling of trial judge admitting challenged testimony under Fed.R.Evid. 804(b)(1)); Alston v. Va. High Sch. League, Inc., 144 F. Supp.2d 526, 539-40 (W.D.Va. 1999) (pretrial ruling admitting hearsay evidence under Fed.R.Evid. 803(3)). Of course, an evidentiary ruling in limine is advisory and can be modified at trial once all circumstances are revealed. See Graham C. Lilly, Law of Evidence 551 (3d ed. 1996); see, e.g., In re Air Crash at Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1071, 1074 (D.S.C. 1996) (court reserving right to reverse its decision on motion in limine). In its discretion, the court may decline an early ruling on the admissibility of evidence, especially if "it is not certain exactly what form the evidence will take or in what context it might be offered." Lilly, supra; see, e.g., Smithers v. C G Custom Module Hauling, 172 F. Supp.2d 765, 773 (E.D.Va. 2000) (reservation of ruling on admissibility of evidence pending presentation at trial of proper foundation).
II. GOVERNMENT'S MOTION IN LIMINE REGARDING VICTIM STATEMENTS.
The defendants Church and Ealy are charged with various federal crimes arising out of the murders of Robert Davis, his wife Una Davis, and her fourteen-year-old son, Robert Hopewell, on April 16, 1989. Ealy was tried in state court in 1991 for the murders and acquitted. The defendants' trials have been severed and Ealy is to be tried first.
According to the government, on the day prior to the murders one of the victims, Robert Davis, had a conversation with Starlet Lee Helmandollar in which Davis told Helmandollar that "something big was coming down, that he was not going to hang for it, that he was going to sing, and that he was going to get the hell out of town . . . [and] that he had been clean for three days." (Gov't Mot. Limine Re: Victim Statements at 1.) The government represents that this statement expresses Davis's plan to testify in order to extricate himself from criminal entanglements. It asserts that defendants Church and Ealy murdered Davis and his family because of Davis's intention to testify in a drug case. In its motion, the government requests that I admit Davis's statement at trial.
Federal Rule of Evidence 803(3) states that "a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)" is not excluded by the hearsay rule. Fed.R. Evid 803(3). Whenever one's intention "is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party." Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295 (1892). Hearsay statements by a murder victim are admissible to demonstrate a defendant's motive to kill. See United States v. Tokars, 95 F.3d 1520, 1535 (11th Cir. 1996); United States v. DiNome, 954 F.2d 839, 846 (2d Cir. 1992); United States v. Donley, 878 F.2d 735, 737-38 (3d Cir. 1989).
Davis's involvement in the continuing criminal enterprise and his intention to "sing" to authorities in order to avoid "hanging" is a crucial issue in this case because it establishes a motive for the defendants to kill Davis. His statement expressing that intention clearly identifies his state of mind at the time the statement was made. There is no indication that Davis had reason to mislead or misinform the hearer of the statement, and the statement is highly relevant and probative evidence in this case.
Defendant Ealy argues that the statement contains clauses that do not reflect Davis's state of mind. He contends that the statement should be severed, and each part individually analyzed for admissibility. I disagree and find that the clauses should be considered as a whole. The phrases combine to form a single thought; each remark provides context for those that precede and follow it. Each phrase is understandable and has relevance only by reference to the surrounding words. Davis's remarks that "something big was coming down" and "he was not going to hang for it" explain why he intended to "sing" and then "get the hell out of town." "That he had been clean for three days" is further evidence of his involvement with the drug enterprise and is indicia of the trustworthiness of the statement as a whole.
Ealy also contends that the statement is ambiguous, and thus irrelevant. He believes that there is no context or explanation for Davis's comments, that the statement could be referring to any number of criminal matters not related to this case. He further argues that the government cannot introduce the statement to prove a third party's conduct; it is admissible only to prove why a third party acted as he did. See United States v. Jenkins, 579 F.2d 840, 843 (4th Cir. 1978). If the government seeks to admit the statement to demonstrate why the defendants acted in a certain manner, the government must provide independent evidence of the defendants' conduct to overcome a presumption of irrelevance. See id; United States v. Houlihan, 871 F. Supp. 1495, 1499 (D.Mass. 1994).
I find each of these arguments unpersuasive. Because Davis's statement was made the day before his murder, involves a reference to drug use ("he had been clean for three days"), and implies that Davis planned to flee to avoid retribution for disclosing information to authorities, it provides sufficient details from which a jury could reasonably infer motive for Davis's death. Furthermore, the government represents that it will introduce independent corroborating evidence to support its theory that Davis was involved in the criminal enterprise and was murdered because of his intention to testify against the other members of the conspiracy. Therefore, the statement is entirely relevant to the government's case.
Ealy insists that the statement is also irrelevant because Charles Wesley Gilmore, the alleged ringleader of the conspiracy, was never made aware of the statements. He contends that since the statement was not communicated to Gilmore, it could not supply Gilmore's motive in ordering the defendants to kill Davis. The same argument was rejected in United States v. Donley, 878 F.2d 735, 738 (3d Cir. 1989). In that case, the murder victim made statements indicating her intent to move out of her house and separate from her husband. See id. at 737. Her husband, on trial for her murder, argued that the hearsay statements could not go to show his motive because it could not be proven that he heard his wife's comments. See id. at 738. The court held that even if the defendant did not hear the statements, the evidence was admissible because the testimony remained useful in establishing motive. See id. The same is true in Ealy's case. Even though Gilmore may not have heard Davis's remarks to Helmandollar, it is reasonable to infer that he discovered Davis's plan through some other means. The testimony is still relevant to the existence of a motive for Davis's murder.
Finally, Ealy asserts that the court should exercise its discretion to exclude the statement because its probative value is outweighed by the danger of prejudice. I disagree and conclude that the statement is highly probative on the issue of motive and poses little threat of unfair prejudice.
III. GOVERNMENT'S MOTION IN LIMINE (PART I).
The government expects the defense to call certain witnesses who will testify to hearing Church make statements that would serve to exculpate Ealy from the Davis/Hopewell murders. At Ealy's state trial, Ronald Kretzer, a cellmate of Church, testified that Church admitted he was present when the Davis family was murdered, and that "Sam Ealy did not, indeed, do the murders." (Gov't Mot. Limine at 1.) Ruby Powers is expected to testify that she overheard Church say that, "he [Church] does the crime, somebody else does the time [and] we had to go back in and kill the little retard, because he would know who we were." (Id.) The government also expects the defense to elicit testimony from Ronnie Pennington that he heard Church implicate himself in the crime and also identify Danny Lambert as a person responsible for the murders. The government moves the court to exclude as hearsay any such evidence, specifically the anticipated testimony of Kretzer, Powers, and Pennington.
Kretzer, Powers, and Pennington were witnesses at Ealy's state trial and the parties expect their testimony in federal court to conform to their statements made under oath during the state proceedings.
Federal Rule of Evidence 804(b)(3) provides an exception to the hearsay rule for statements against interest. Satisfaction of the first two requirements under this exception, that the declarant is unavailable and that the statement is genuinely adverse to the declarant's penal interest, is undisputed by the parties. See United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (setting forth the three requirements for admissibility of hearsay under Rule 804(b)(3)). The parties expect Church to claim his Fifth Amendment privilege against self-incrimination if he is asked to take the stand; therefore, he is "unavailable" for purposes of this rule. See Fed.R.Evid. 804(a)(1); United States v. Brainard, 690 F.2d 1117, 1123-24 (4th Cir. 1982). Church's statements are against his penal interest because they imply that he had an insider's knowledge of the crime and many of his comments acknowledge his own involvement in the murders.
Rule 804(b)(3) further requires that "a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Fed R. Evid. 804(b)(3); see Bumpass, 60 F.3d at 1102. Ealy has the burden of clearly establishing by corroborating circumstances that the statements are trustworthy. See Bumpass, 60 F.3d at 1103. In United States v. Lowe, 65 F.3d 1137 (4th Cir. 1995), the Fourth Circuit set forth a list of factors used to assess the corroborating circumstances of a given statement. The court should consider:
(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement, (2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie, (3) whether the declarant repeated the statement and did so consistently, (4) the party or parties to whom the statement was made, (5) the relationship of the declarant with the accused, and (6) the nature and strength of independent evidence relevant to the conduct in question.
Id. at 1146 (quoting Bumpass, 60 F.3d at 1102). Assuming that the facts are accurately portrayed by the parties, I find that the statements at issue should not be admitted because the corroborating circumstances do not clearly indicate the trustworthiness of those statements.
Both parties agree that Church was still exposed to prosecution at the time he made the statements. However, statements inculpating the declarant and exculpating the defendant are inherently suspect. See United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir. 1984). There is no clear theory as to what Church's motive was in making these statements, and whether he had reason to lie. As noted by the Sixth Circuit, "`Persons will lie despite the consequences to themselves to exculpate those they love or fear, to inculpate those they love or fear, or because they are congenital liars.'" United States v. Noel, 938 F.2d 685, 689 (6th Cir. 1991) (quoting Weinstein's Evidence, vol. 4 at § 804(b)(3)[01] (1990)).
Other of the factors are inconclusive. For example, the nature of the relationship of Church to the persons to whom the statements were made does not support or preclude trustworthiness.
The factor that weighs most heavily in favor of excluding the evidence is whether Church repeated the statement and did so consistently. Minor contradictions in his story and failure to repeat the same set of facts undermine the declarant's credibility. See, e.g., Noel, 938 F.2d at 688, United States v. Bagley, 537 F.2d 162, 168 (5th Cir. 1976). The government represents that Church made additional remarks that implicated Ealy in the crimes and thus contradict the statements at issue. Assuming this to be true, Church's story about the events that took place and the people participating in the murders was not consistent and therefore is not trustworthy. Furthermore, only in his comment to Kretzer did Church specifically mention Ealy's lack of involvement. The other two statements at issue do not address whether Ealy was a participant; they merely suggest that other individuals may have been involved in the murders. This also detracts from the reliability of the statements and supports the exclusion of the evidence.
Keeping in mind that Ealy bears the burden of proving that the statements are trustworthy, I find that the requirement of corroborating evidence has not been met. The circumstances do not clearly indicate that the statements are reliable and therefore they should not be admitted as an exclusion to the hearsay rule. The government's motion in limine to exclude the statements of Kretzer, Powers, and Pennington will be granted.
In the event the court had admitted the statements, the government requested a fair playing field-specifically, that it be allowed to elicit other hearsay statements that serve to implicate Ealy in the murders. As I have decided to bar the admission of the exculpatory statements offered by the defense, I will not permit the government to introduce the proffered inculpatory statements identified in the government's motion.
IV. GOVERNMENT'S MOTION IN LIMINE (PART III).
The government seeks permission to introduce prior consistent statements of witnesses whose credibility is challenged by the defense. By way of example, the government states that it intends to call Raymond Dancy as a witness. Dancy is expected to testify that during a conversation with Ealy in the spring of 1992, he learned that Ealy had cut up the murder weapon in his mother's garage and thrown the pieces off a bridge. Dancy reported the information to the FBI in June 2000, and the government anticipates that the defense will attack the statement as a recent fabrication. In rebuttal, the government would like to introduce the testimony of Bluefield police officer Pete Beavers who will tell the jury that Dancy contacted him in 1992, shortly after his conversation with Ealy, and informed him of Ealy's comments.
The Federal Rules of Evidence allow the introduction of prior consistent statements if offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See Fed.R.Evid. 801(d)(1)(B); United States v. Acker, 52 F.3d 509, 517 (4th Cir. 1995). It is settled law that the prior statement must predate the alleged motive or fabrication. See Tome v. United States, 513 U.S. 150, 156 (1995). The defense alleges that Dancy fabricated the story because his sister was having an affair with Samuel Ealy. The theory is that Dancy wanted Ealy imprisoned in order to preserve his sister's marriage. The defense argues that the motive also existed in 1992 when Dancy communicated Ealy's statement to Officer Beavers, therefore Rule 801(d)(1)(B) does not apply and the statement should be excluded.
The government submits a second basis for admission of the statement and offers the Fourth Circuit case of United States v. Ellis, 121 F.3d 908 (4th Cir. 1997), in support of its position. In that case, the court held that a prior consistent statement may be admissible without regard to Rule 801 if it is offered for the limited purpose of rehabilitation. See Ellis, 121 F.3d at 919. This common law rule, however, allows admission of prior consistent statements for the purpose of rehabilitation if the statement clarifies or explains a prior inconsistent statement with which the witness has been impeached. See id. at 920; Michael H. Graham, Federal Practice and Procedure: Evidence § 7012 (Interim ed. 2000). Here, the defense does not wish to impeach Dancy with a prior inconsistent statement; therefore, the common law rule does not apply.
Because the facts are not yet clearly established as to the circumstances creating Dancy's alleged motive, it is difficult to determine in advance of trial whether the proper foundation will be laid for admission under Rule 801(d)(1)(B). Therefore, I will reserve ruling on this question and will address the issue, if necessary, at trial.
V. CONCLUSION.
For the reasons stated above, it is ORDERED as follows:
1. The Government's Motion in Limine Regarding Victim Statements (Doc. No. 204) is granted;
2. The Government's Motion in Limine (Doc. No. 207) is granted as to Part I, and ruling is reserved as to Part III; and
3. Defendant Ealy's Motion in Limine to Admit and Redact (Doc. No. 268) is denied.