UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 19-cr-35-01-JL Opinion No. 2019 DNH 117P Romeo Tyree Hayes
MEMORANDUM ORDER
Ahead of defendant Romeo Hayes’s jury trial on one count of
assault in a federal prison, Hayes and the prosecution each
filed two evidentiary motions in limine. The court orally ruled
on these four motions at the final pretrial conference, but this
order serves to set forth the basis for (and in some cases,
refine and clarify) the rulings in further detail. See, e.g.,
United States v. Joubert, 980 F. Supp. 2d 53, 55 n.1 (D.N.H.
2014), aff’d, 778 F.3d 247 (1st Cir. 2015) (citing In re Mosley,
494 F.3d 1320, 1328 (11th Cir. 2007) (noting a district court’s
authority to later reduce its prior oral findings and rulings to
writing)).
The court reminds the parties that these rulings are made
without prejudice to revisiting particular issues in response to
circumstances that might arise during trial. Furthermore, these
rulings are limited to grounds argued in the parties’ filings
and raised at the final pretrial conference and oral argument.
The court reserves the right to assess other factors at trial, such as hearsay, authenticity, and best evidence, see Fed. R.
Evid. 800 et seq., 900 et seq., and 1000 et seq., and where
appropriate, arguments and grounds not raised by counsel. To
the extent the court here rules that evidence may be admitted
for a limited purpose, see Fed. R. Evid. 105, it will give the
jury a limiting instruction upon the request of counsel at
trial.
Background
This is an assault case, not usually brought in federal
court, but for the fact that the alleged assault occurred in a
federal prison. The indictment alleges that Hayes, while
incarcerated at FCI-Berlin, knowingly assaulted a fellow inmate,
Lorence Smith, resulting in serious bodily injury to Smith in
that Smith’s nasal bones, mandible, and pterygoid plate were
fractured. Hayes anticipates asserting a claim of self-defense.1
The prosecution moves to preclude Hayes from introducing
testimony regarding specific instances of the victim’s prior
conduct and from introducing certain statements made by Hayes
after the alleged assault. The defendant moves to preclude the
prosecution from impeaching his testimony with his prior felony
1 See Def.’s Obj. to Gov.’s Mot. in Limine to Exclude Def.’s Hearsay Statements (doc. no. 37) at 2.
2 convictions and from introducing a recorded section of a prison
phone call he purportedly made after the alleged assault.
Analysis
A. Specific instances of victim’s prior conduct
The prosecution moves to exclude evidence and testimony
regarding specific instances of the alleged victim’s past
conduct, including Smith’s prison disciplinary records, which
memorialize sanctions by the Bureau of Prisons (“BOP”) for
fighting other inmates and possessing weapons prior to the
alleged assault.2 The prosecution argues that such evidence is
inadmissible “character” and “prior bad acts” evidence. The
court disagrees in part. Although evidence of specific
instances of conduct is inadmissible to prove Smith’s propensity
for violence or that Smith acted in accordance with such a
propensity on this occasion, some such evidence may be
admissible to corroborate Hayes’s testimony regarding Smith’s
violent reputation, in order to prove the reasonableness of
Hayes’s belief that Smith posed a threat to him.
Ordinarily, evidence of a person’s character and specific-
conduct propensity is inadmissible under Rule 404. However, in
a criminal case, “a defendant may offer evidence of an alleged
victim’s pertinent trait” in the form of “an opinion” or
2 Document no. 24.
3 “testimony about the [victim’s] reputation.” Fed. R.
Evid. 404(a)(2)(B) and 405(a). It is important to understand
that Rule 404 governs whether, and under what circumstances,
character and prior-bad-acts evidence is admissible, while
Rule 405 governs how, and by what method, such evidence may be
elicited and introduced.
Under these rules, a criminal defendant may testify about
his knowledge of the alleged victim’s reputation for violence at
the time of the alleged assault, Fed. R. Evid. 405(a), as that
is an exception to the general rule prohibiting character
evidence regarding victims’ “pertinent” character traits. See
Fed. R. Evid. 404(b)(2)(B). A defendant may also offer evidence
of “specific instances” of an alleged victim’s conduct to prove
a character trait when it is not only pertinent (see id.), but
“an essential element” of a charge, claim, or defense. Fed. R.
Evid. 405(b). But an alleged victim’s dangerous or violent
character, while certainly “pertinent” under Rule 404, is not
normally or necessarily an “essential element” of self-defense
under Rule 405. United States v. Gulley, 526 F.3d 809, 819 (5th
Cir. 2008) (“a self-defense claim may be proven regardless of
whether the victim has a violent or passive character”); United
States v. Keiser, 57 F.3d 847, 857 (9th Cir. 1995) (“the
victim’s violent nature is not essential to a successful claim
of self-defense”); First Circuit Pattern Criminal Jury
4 Instructions 5.04 (elements of self-defense are that (1)
defendant acted under an immediate threat of serious bodily
injury or death; (2) had a well-grounded belief that the threat
would be carried out; and (3) had no reasonable opportunity to
escape, or otherwise frustrate the threat). Hayes thus may not
submit extrinsic evidence of Smith’s violent acts in order to
prove Smith’s character or to prove that he more likely acted in
a dangerous or violent manner in his encounter with the
defendant giving rise to this charge.
But Hayes may submit evidence of Smith’s violent acts
solely to corroborate his Rule 405(a) testimony regarding his
knowledge and understanding of Smith’s violent character. In
other words, Hayes may not submit testimony or records of
specific instances of Smith’s conduct to directly prove Smith’s
character or to prove that Smith in fact committed those acts,
but he may submit evidence that directly supports the
credibility of his testimony regarding Smith’s reputation or his
opinion of Smith’s character. Hayes thus may only submit
evidence of specific instances of Smith’s conduct that directly
corroborate his own testimony, including those portions of
Smith’s prison disciplinary records that directly corroborate
Hayes’s professed knowledge of Smith’s dangerous and violent
5 character.3 Hayes may either submit a proffer or, if he chooses,
submit himself to a voir dire examination outside of the
presence of the jury to determine the scope of this
conditionally admissible evidence for this limited purpose. See
Fed. R. Evid. 104.
The prosecution’s motion is thus granted except as to
evidence of specific instances of Smith’s conduct that is
offered only to corroborate Hayes’s testimony regarding Smith’s
character, as it pertains to his assertion of self-defense. If
requested, the court will give a limiting instruction to ensure
that the jury does not consider the evidence as propensity
evidence to show that the alleged victim acted in a violent or
dangerous manner during the confrontation in question. See Fed.
R. Evid. 105; Fed. R. Evid. 404(a).
B. Possible hearsay statements by defendant
The prosecution moves to preclude Hayes from submitting
evidence of two separate statements Hayes made to prison
3 Hayes argues that such evidence is also admissible as to his credibility under Rule 404(b), because the list of permissible purposes under that subsection is non-exhaustive. Fed. R. Evid. 404(b) (“Evidence of a crime wrong or other act . . . may be admissible for another purpose, such as proving motive, opportunity, intent, knowledge, identity, absence of mistake, or lack of accident.”); see United States v. James, 169 F.3d 1210, 1215 (9th Cir. 1999) (admitting under 404(b) records of victim’s prior acts to corroborate defendant’s credibility in self- defense case). Adopting this route to admissibility would not alter the scope of admissible evidence.
6 personnel after the alleged assault.4 First, directly after the
assault prison employees escorted Hayes from the scene to the
facility’s Secure Housing Unit. During the walk, Hayes stated
without prompting or questioning that he “had no choice.”5
Second, several weeks after the alleged assault, Special
Investigative Services (“SIS”) Tech Glenn Brown interviewed
Hayes. Hayes told SIS Tech Brown that “I was protecting
myself.”6 The prosecution, which represents that it will not
introduce those statements at trial (removing them from the
category of adverse-party admissions under Rule 801(d)(2)),
argues that both statements are inadmissible hearsay. See Fed.
R. Evid. 801, 802.
Hayes argues that his “had no choice” statements while
being led away from the scene of the alleged assault are
admissible as “present sense impressions” or “excited
utterances,” exceptions to the Rule Against Hearsay. See Fed.
R. Evid. 803(1), 803(2). The court agrees that the statements
are excited utterances. That exception requires “(1) a
startling event or condition; (2) a statement made while the
declarant was subject to the influence of the event or
4 Document no. 36. 5 See Statement of Supervisor Laflamme (doc. no. 37-1); Statement of Foreman Knall (doc. no. 37-3). 6 Interview report (doc. no. 37-2).
7 condition; and (3) a relation between the statement and the
event or condition.” United States v. Bailey, 834 F.2d 218, 228
(1st Cir. 1987). The defendant’s statements were made just
after the alleged assault, and concerned those events. One of
the correctional officers who escorted Hayes describes him as
“tense and trembling” at this time, to the degree that they
inquired about his ability to maintain composure while walking.7
Hayes was thus still subject to the influence of the recent
events when he made the statement. The statements meet the
requirements of the hearsay exception.8
The prosecution argues that the statement does not fit
within the rationale of the excited utterance exception because
it is self-serving. Both cases it cites in support involve a
defendant’s statements denying responsibility that allegedly
fell within the exception because of excitement caused by the
discovery of contraband by the police. United States v.
Esparza, 291 F.3d 1052, 1055 (8th Cir. 2002) (“Police discovery
of contraband is not ordinarily the kind of ‘startling event’ to
which this exception applies.”); United States v. Sewell, 90
7 Statement of Foreman Knall (doc. no. 37-3). 8 The court is skeptical, under these particular circumstances, that Hayes was “describing or explaining an event or condition” within the meaning of a present sense impression, but need not reach that issue because the statement is admissible as an excited utterance. See Fed. R. Evid. 803(1).
8 F.3d 326, 327 (8th Cir. 1996).9 Hayes’s excitement stemmed not
merely from “learning of the evidence against him,” but from the
alleged physical confrontation. See Sewell, 90 F.3d at 327.
The apparently self-serving nature of Hayes’s statement may
affect its weight as evidence, but does not preclude its
admission.
Hayes’s statement to SIS Tech Brown, several weeks after
the alleged assault, is hearsay and will not be admitted, see
Fed. R. Evid. 801, 802, except, potentially, to rehabilitate
Hayes’s credibility as a witness as a prior consistent statement
under Rule 801(d)(1)(b). Again, the interview statement is not
the statement of a party opponent because Hayes, and not the
U.S. Attorney, is seeking to introduce it. See Fed. R.
Evid. 801(d)(2). But if Hayes’s credibility as a witness is
attacked on another ground and the statement made to SIS Tech
Brown is consistent with Hayes’s testimony, under the
appropriate circumstances it will be admissible to rehabilitate
Hayes’s credibility as a witness. See Fed. R.
Evid. 801(d)(1)(B).
9 Similarly, United States v. Pursley states that “the presence or absence of self-interest” is a factor considered in “determining whether a declarant made a statement under the stress of a particular event.” 577 F.3d 1204, 1220 (10th Cir. 2009). Here, the strong, documented evidence that Hayes was “under the stress” of the recent events outweighs any effect of the presence of self-interest.
9 The prosecution’s motion is denied as to Hayes’s statement
directly after the alleged assault, and taken under advisement
as to the statement to SIS Tech Brown, in that the latter
statement may become admissible if Rule 801(d)(1)(B) is
triggered at trial.
C. Defendant’s prior convictions
Hayes moves to prohibit the prosecution from impeachment
with evidence of his prior District of Columbia convictions for
Unauthorized Use of a Vehicle During a Crime of Violence,
Destruction of Property, Assault with intent to Kill, and
Possession of a Firearm During a Crime of Violence.10
Generally, when a defendant takes the witness stand, the
prosecution can challenge the defendant’s “character for
truthfulness by evidence of a criminal conviction . . . for a
crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year” if “the
probative value of the evidence outweighs its prejudicial effect
to that defendant.” Fed. R. Evid. 609(a)(1)(B). In these
situations, the United States bears the burden of showing that
the evidence’s probative value outweighs its prejudicial effect.
See Fed. R. Evid. 609(a) advisory committee’s note to 1990
amendment.
10 Document no. 35.
10 “Rule 609 is premised on ‘the common sense proposition that
one who has transgressed society’s norms by committing a felony
is less likely than most to be deterred from lying under
oath.’” Walden v. Georgia-Pac. Corp., 126 F.3d 506, 523 (3d
Cir. 1997) (quoting Cummings v. Malone, 995 F.2d 817, 826 (8th
Cir. 1993)). Hayes’s state convictions, while certainly recent
enough to reflect on his credibility in the general sense
contemplated by Rule 609, are not the type of deception-oriented
crimes that implicate dishonesty in particularly probative way.
Further, they are crimes of violence that could substantially
prejudice a defendant’s case, especially where, as here, the
defendant stands charged with a violent crime. See Gordon v.
United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (“In common
human experience acts of deceit, fraud, cheating, or stealing,
for example, are universally regarded as conduct which reflects
adversely on a man’s honesty and integrity. Acts of violence on
the other hand . . . generally have little or no direct bearing
on honesty and veracity.”). And given that Hayes is currently
incarcerated with the Bureau of Prisons, the jury will
undoubtedly know that he has been convicted of a felony on a
prior occasion, regardless of any impeachment with prior
convictions.
The prosecution has not met its burden of establishing that
the prior conviction impeachment would be more probative than
11 prejudicial. Hayes’s motion in limine to exclude the details of
his prior convictions is GRANTED.
D. Prison telephone call recording
Next, Hayes asks the court to exclude a 15-minute audio
recording of a February 9, 2019 “jailhouse” phone conversation,
during which Hayes purportedly challenges or corrects an
unidentified woman’s understanding of the prison confrontation
at issue here.11 Hayes asserts that the entire recording should
be excluded under Fed. R. Evid. 403 and 901 because it is mostly
unintelligible, and because the woman conversing with him on the
telephone has not been identified by the prosecution. Further,
he asserts that the woman’s statements constitute inadmissible
hearsay and violate the Sixth Amendment’s Confrontation Clause.
Under these circumstances, the court disagrees.
Fed. R. Evid. 403 provides that the court “may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Here, the probative value of the 45-second portion
the United States intends to introduce outweighs any of these
dangers, “even though portions of the recordings are inaudible,”
11 Document no. 39.
12 see United States v. Doyon, 194 F.3d 207 (1st Cir. 1999), and
the United States does not intend to play the entire tape, see
United States v. Lentz, 524 F.3d 501 (4th Cir. 2008) (allowing
government to introduce only one portion of jail call and
denying defendant’s argument that Rule 106 required admission of
entire call, including self-serving exculpatory comments by
defendant).
Circuit precedent holds that the admissibility of a
partially inaudible audio recording – and “whether the inaudible
parts are so substantial as to make the rest more misleading
than helpful” – rests within the discretion of the district
court. United States v. Carbone, 798 F.2d 21, 24 (1st Cir.
1986); see also United States v. Panzardi-Lespier, 918 F.2d 313,
318 (1st Cir. 1990). Having reviewed the recording, the court
finds that the early portion of the tape clearly records Hayes’s
purported admission that at the time of the call he was confined
in “the hole” because he fought with another inmate, as well as
his denial that he was stabbed. These details are corroborated
by other evidence in the case, as were the recorded statements
in Doyon. The fact that portions of the call thereafter may be
inaudible has little or no tendency to prejudice Hayes’s case or
confuse the jury, as Hayes has not argued (and it does not
appear) that these portions are relevant to the prosecution’s
case or Hayes’s defense. As such, the audible portions of the
13 recording remain highly probative relative to any potential
prejudice or confusion.
In addition, the court has given both parties leave to
provide the jury with a transcript to aid them in following the
audio recording, thus minimizing potential for confusion. See
Panzardi-Lespier, 918 F.2d at 318 (recognizing that “transcripts
are used to assist the jury in following tape recording
playbacks”); see also United States v. Pion, 25 F.3d 18, 21 (1st
Cir. 1994) (recognizing defendant’s right to introduce own
transcript when parties do not stipulate).12 In his papers and
at oral argument, Hayes maintained that a transcript is
insufficient to aid the jury in following the unintelligible or
indecipherable parts of the audio recording, and that the
prosecution’s proffered transcript of the call’s first minute
contains inaccuracies and could impermissibly bolster the United
States’ theory of the case. To address these concerns, the
court grants Hayes the following accommodation: his counsel can
work with the government to create a stipulated transcript that
more accurately reflects his purported conversation with the
unidentified woman, or if no stipulation can be reached, he can
12Of course, the defendant has no obligation to provide any evidence, or any information, to the jury at trial. So while the court allows him to provide a transcript, it can not and does not order him to do so. U.S. Const. amend. V.
14 submit his own alternative transcript to aid and augment the
jury’s understanding of the audio recording.
To be clear, the sole purpose of the transcript(s) is to
aid the jury’s understanding of the recording. See supra n.12.
As such, the transcript(s) will not be admitted as evidence, see
Fed. R. Evid. 1002 (best evidence rule), and the jury will be
properly instructed that to the extent any transcript differs
from their perception of the recording, the recording controls.
See United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986).
As to the defendant’s authentication-based objection, the
prosecution represented at oral argument that it will properly
authenticate the recording at trial per Rule 901, which requires
that a proponent of an item of evidence “produce evidence
sufficient to support a finding that the item is what the
[United States] claims it is.” Fed. R. Evid. 901. Here, the
prosecution has explained that it will admit the recording
through a Bureau of Prisons employee who will “testify about the
prison’s policy of recording telephone calls, software used to
record calls, the procedures he followed to obtain the recording
of the call, . . . and the accuracy of the copy of the recording
played at trial.” Id.; see also Fed. R. Evid. 1001-03. The BOP
employee will also testify that to use the phone, a prisoner
must enter a specific code unique to him or her, and that
Hayes’s code was entered for the audio recording in question.
15 Hayes’s counsel agreed at oral argument that this foundation is
sufficient to authenticate the recording under Rules 901 and
902.
Finally, the court finds that the unidentified woman’s
statements do not constitute hearsay in this case and thus do
not violate Hayes’s rights under the Confrontation Clause. The
Confrontation Clause provides every person accused of a crime
has “the right to confront a witness against him or her in a
criminal action.” U.S. Const. amend. VI. But here, the
Confrontation Clause is not implicated because the United States
merely intends to introduce the woman’s statements to provide
context for Hayes’s purported part of the conversation and not
to prove their truth. See Fed. R. Evid. 801(c)(2). In this
regard, the use of a non-testifying person’s statements on an
audio recording is well-traveled ground.13 In United States v.
Hicks, for example, the Court of Appeals affirmed a trial
court’s decision to admit a jail call between a defendant and a
non-testifying individual because her statements were “admitted
to provide context for the statements of appellant … [and] did
not implicate the Confrontation Clause.” 575 F.3d 130 (1st Cir.
2009). Likewise, in United States v. Walter, the Court of
13In fact, her statements do not support the U.S. Attorney’s theory of the case, and more closely support the defendant’s version of events.
16 Appeals affirmed the introduction of a non-testifying
informant’s recorded statements because they were offered for
the nonhearsay purpose “to provide context for the admissions of
[defendant].” 434 F.3d 30, 34 (1st Cir. 2006).
The context here is simply that Hayes’s statements were
responses to the words uttered by the woman speaking to him.
Without the context provided by her words, Hayes’s statements
would make little sense to the jury. If requested, the court
will give an appropriate limiting instruction that the woman’s
words may not be considered for their truth. See Fed. R.
Evid. 105. Alternatively, the parties are ordered, if Hayes so
requests, to redact the woman’s statements from the audio
recording and corresponding transcripts.
On this record, the court denies the motion to exclude the
audio recording of the February 9, 2019 phone conversation
without prejudice.
Conclusion
The prosecution’s motion to preclude evidence regarding
specific instances of the victim’s prior conduct14 is GRANTED IN
PART and TAKEN UNDER ADVISEMENT IN PART, as discussed supra.
The prosecution’s motion to preclude alleged hearsay statements15
14 Document no. 24. 15 Document no. 36.
17 is DENIED as to the defendant’s statements on January 30 and
TAKEN UNDER ADVISEMENT as to the defendant’s statements on
February 20. Hayes’s motion to preclude the government from
impeaching him with his prior convictions16 is GRANTED. And
Hayes’s motion to exclude the jailhouse phone conversation17 is
DENIED.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: July 25, 2019
cc: Anna Z. Krasinski, AUSA Georgiana L. Konesky, AUSA Jeffrey S. Levin, Esq.
16 Document no. 35. 17 Document no. 39.