United States v. Clifford E. Payne, United States of America v. Roland Payne, United States of America v. Hubert Payne

492 F.2d 449, 1974 U.S. App. LEXIS 10140

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 8, 1974
• Docket: 73-1199, 73-1200 and 73-1201
• Status: Published

Opinions

WINTER, Circuit Judge:

Clifford Payne, Roland Payne and Hubert Payne were found guilty of conspiracy to violate 18 U.S.C.A. § 472 by obtaining, possessing and passing counterfeit $10 Federal Reserve Notes. Each was sentenced to imprisonment. Three other co-defendants, including their brother Burrell, pleaded guilty to the same indictment. Clifford, Roland and Hubert attack the validity of their convictions on the ground that the district court erroneously and unconstitutionally admitted into evidence a written, unsigned statement of Burrell implicating them. Before the statement was admitted, Burrell was produced as a witness and testified that he neither remembered the events described in the statement nor the fact of making the statement. Hubert also attacks his conviction on the additional ground that a money order, on which “Hubert Payne” was designated in handwriting as the sender, was improperly admitted into evidence because there was no proof that the handwriting was his.

We see no merit in either contention, and we affirm.

I.

At the trial of Clifford, Roland and Hubert Payne, Burrell Payne, who had previously pleaded guilty, was called as a witness for the government. When interrogated, he remembered and recognized his brothers. He claimed no recollection of having pleaded guilty, but he did not dispute that fact. He claimed no recollection of having talked to any “federal men” at his home in Wytheville, Virginia, on July 11, 1972, and he denied any recollection of having passed any counterfeit money. Again, however, he did not dispute either fact, but said simply that he had no recollection. A writing, later identified as an unsigned partial statement taken by a member of the Secret Service, was exhibited to him, but it failed to refresh his recollection either of the events set forth in the statement, or of the fact that the interview had taken place. Burrell made reference to the fact that he had been a patient at a state mental hospital and was still an out-patient and on medication. He also mentioned an accident when he fell down some steps while he was holding an eighty pound power tool and suffered some temporary paralysis and loss of memory thereafter.¹

Special Agent, Peter M. Donald, Jr., of the Secret Service, was then called as a witness. Agent Donald said that he and two other Secret Service agents talked to Burrell at Burrell’s home in Wytheville, Virginia, on January 11, 1972. The interview began in an automobile in front of the residence and then adjourned inside to the kitchen for the purpose of taking a written statement from Burrell. There, Agent Donald interrogated Burrell and wrote his answers. In the words of Agent Donald “[h]e [Burrell] was providing the facts and I was writing them down on a piece of paper.” Agent Donald testified that as the interview in the kitchen progressed, Burrell complained of dizziness, headache and loss of memory, and by mutual agreement the taking of the statement was terminated. Agent Donald was of the view that, until Burrell terminated the interview, his memory then was far better than it appeared in court; Burrell appeared “perfectly normal” and related instances which he said had occurred two or three months earlier. Burrell did not sign the statement; but Agent Donald testified that his transcription of Burrell’s statement was accurate to the point that Burrell terminated the interview, and Agent Donald’s verification is not challenged on appeal.

Over defendant’s objection, the district court admitted the statement, and it was exhibited to the jury. It recorded that Burrell had been advised of his constitutional right not to make a statement, that anything he said could be used against him, and that he concluded to make a statement of his own free will and accord without promise of immunity. It set forth that sometime in November, 1971, he obtained from his brother Hubert thirty-five counterfeit $10 bills, apparently as a gift, and he passed them, with the help of Richard Stanley, a co-defendant, at various places in western Virginia and southern West Virginia. Nine of the notes were passed by Stanley to purchase a money order at the Piggly-Wiggly store in Grundy, Virginia, and the money order was given to Hubert. Burrell obtained additional counterfeit $10 bills from Hubert on a second occasion, and this time paid him $20 for each $100 of counterfeits. The statement also set forth that “I believe my brothers Roland, Clifton and Chester also had some counterfeits.” The statement concluded with the inscription that it was incomplete and unsigned because “subject complains of lapses of memory and dizzy spells,” and there followed Special Agent Donald’s signature.

The evidence concerning the money order, which is the subject of Hubert’s second ground of appeal, was that it was in the amount of $84.63 and was sold at a Piggly-Wiggly store in Grundy, Virginia, to Burrell and an unidentified man for nine counterfeit $10 bills, and that in the printed block for the name of the sender, the name of “Hubert Payne” had been inserted in handwriting. There was no evidence who wrote in the name, but there was evidence that the money order had been cashed in Columbus, Ohio, where Hubert Payne was shown to have lived.

II.

As we see the issue of the admissibility of the statement, it involves the consideration of two aspects of the law — the general law of evidence and the effect of the Confrontation Clause guarantee. We proceed to these considerations seriatim:

A. As a rule of evidence, there are opposing views as to whether recorded past recollection may be admitted into evidence as a permissible exception to the ‘ rule excluding hearsay evidence. The authorities are collected in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), where it is said that a majority of the courts hold that such recorded past recollection may not be offered “to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial,” 399 U.S. at 154, 90 S.Ct. at 1933. The survey and analysis of the authorities contained in Green also discloses that “the minority view adopted in some jurisdictions and supported by most legal commentators and by recent proposals to codify the law of evidence would permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” 399 U.S. at 155, 90 S.Ct. at 1933.

Some of the members of the panel, if faced with the necessity of choosing between majority and minority views in the instant case, would prefer to cast their lot with the minority view and hold that Burrell’s statement was admissible, as recorded past recollection, to prove the truth of its contents. They would be strongly influenced by the potential fostering of perjury, in a case like the instant one where the accuracy of the prior recorded recollection was impressively demonstrated by the testimony of the agent, by the adoption of a rule which would encourage Burrell to feign a failure of recollection, on his own or at the instance of his brothers. But it is unnecessary to make the choice between majority and minority rules in this case. This is so because, even in those jurisdictions following the majority view (See e. g., United States v. Cunningham, 446 F.2d 194 (2 Cir. 1971); United States v. Pacelli, 470 F.2d 67 (2 Cir. 1972), cert. den. 93 U.S. 1501, 93 S.Ct. 1501, 36 L.Ed.2d 178 (March 19, 1973)), prior inconsistent statements of a witness available for cross-examination may be received as affirmative proof when they were made at a former trial, or before a grand jury. United States v. Mingoia, 424 F.2d 710, 713 (2 Cir. 1970); United States v. Insana, 423 F.2d 1165, 1170 (2 Cir.), cert. den. 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). The rationale of these exceptions to the majority rule is that the fact of an oath or possible cross-examination provide sufficient assurances of reliability that the statement ought to be admitted as substantive evidence of the facts it contains.

Following submission of the instant appeals, we required Burrell’s arraignment to be transcribed and submitted to us. Our study of it persuades us that his statement was sufficiently tested as to reliability that it, too, ought to be held admissible to prove the truth of its contents, even though technically it had not been sworn to, or he cross-examined.

On June 12, 1972, about six months prior to the retrial of Clifford, Roland and Hubert at which Burrell testified,² Burrell came on for arraignment. Initially, he entered a plea of not guilty; his motion to sever his case from that of his brothers was granted; and his case was set for trial on July 24. After'the court's luncheon recess, Burrell communicated to the court his desire to change his plea to one of guilty. In full compliance with Rule 11, F.R.Cr.P., Burrell was interrogated to demonstrate the voluntary nature of his tender of a plea of guilty and his understanding of the nature of the charge and the possible consequences of the plea, if accepted. He evidenced no difficulty in understanding or responding to the court’s interrogation of him. Additionally his counsel affirmed that Burrell understood what he was doing in entering a guilty plea to the indictment. Then the court proceeded to the requirement of Rule 11 that he determine if there was a factual basis for the plea.

Peter M. Donald, Jr., who had taken Burrell’s statement was then sworn and testified. After describing how he learned of the crime and a statement given by Chester, he testified how he and other agents interviewed Burrell and essentially what Burrell had told him. The substance of his testimony was in accord with the statement’s contents. Although Burrell was not specifically asked if he controverted the agent’s testimony in whole or in part, he was asked if he had been advised of his constitutional rights and if he had signed a waiver before he was questioned and he replied affirmatively.

Of course, Burrell’s statement was not admitted at his arraignment, nor the aspect implicating Roland, Clifford and Chester described. The agent did testify however that Burrell had implicated Hubert and Richard Stanley. Admittedly also, Burrell was not specifically asked if he controverted the results of his interview, but there can be no question in our minds that Burrell’s attention was directed to his statement, that he had ample opportunity to disavow the fact of the interview and what was discussed, or to assert his lack of recollection of all or any part of it, and that his silence, in the presence of the court, amounted to tacit admissions that the interview took place, that he remembered it and that he acknowledged the correctness of Mr. Donald’s testimony of his answers. Our conclusion is fortified by his affirmative response when questioned about his being advised of his constitutional rights, a fact recorded in the statement.

In short, we think that, under the special facts of this case, the reliability of the record of Burrell’s past recollection was sufficiently established that admission of the record into evidence was not barred by mechanical application of the rule against hearsay testimony.

B. We see no constitutional impediment in the sixth amendment right of confrontation to the admission of the statement. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court upheld the validity of a California statute which provided‘that the hearsay rule would not render inadmissible a statement made by a witness if the statement was inconsistent with the testimony of the witness at the trial and the witness was given the opportunity to explain or deny his prior statement. In the case, both a transcript of a preliminary hearing and an unsworn statement to a police officer were admitted to prove the truth of the matters asserted therein, when a witness at trial claimed a failure of recollection of those matters. Specifically, the witness, a drug user who had previously identified the accused as his supplier, testified at the trial that he was uncertain of who was his supplier because he had been under the influence of drugs. The contention was advanced that such,., use of a statement violated the Confrontation Clause, but the Court rejected the argument with respect to the testimony at the preliminary hearing and held that the sixth amendment did not preclude admission of such a statement when the witness was sworn and subject to cross-examination at both the preliminary hearing and at trial. The Court did not decide the constitutional validity of the admission of the witness’ unsworn statement to a police officer, because it concluded that the issue was not ripe for adjudication.

Admittedly, California v. Green does not decide the precise issue before us; here, we are concerned with an unsworn statement to a police officer and a claimed total failure of recollection at trial. It did comment that

[v] iewed historically . . . there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.

399 U.S. at 158, 90 S.Ct. at 1935. And, after stating that the Confrontation Clause insures that the witness will testify under oath, that the witness will be subjected to cross-examination and that the jury will have the opportunity to assess credibility, the Court added:

[i]t is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections .... the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.”

399 U.S. at 158-159,³ 90 S.Ct. at 1935.

Notwithstanding the apparent breadth of some of the statements quoted, the Court reserved the question of the admissibility of the unsworn statement to the police officer, saying, “we find little reason to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given,” but “Porter [the witness] claimed at trial that he could not remember the events that occurred,” and “[w]hether Porter’s apparent lapse of memory so affected Green’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause . . . is an issue which is not ripe for decision at this juncture.” 339 U.S. at 168-169, 90 S.Ct. at 1940-1941. Mr. Justice Harlan, concurring, would have supplied the answer, because he stated his firm conclusion that “the Confrontation Clause of the Sixth Amendment reaches no farther than to require the prosecution to produce any available witness whose declarations it seeks to use in a criminal trial.” 399 U.S. at 174, 90 S.Ct. at 1943. In the course of his opinion, Mr. Justice Harlan added:

The fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence. The prosecution has no less fulfilled its obligation simply because a witness has a lapse of memory. The witness is, in my view, available. To the extent that the witness is, in a practical sense, unavailable for cross-examination on the relevant facts . I think confrontation is nonetheless satisfied.

399 U.S. at 188-189, 90 S.Ct. at 1951. See also Mr. Justice Harlan’s separate opinion in Dutton v. Evans, 400 U.S. 74, 93, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

While the majority of the Supreme Court has not yet committed itself to the thesis of Mr. Justice Harlan, we think, nevertheless, that under the principles of California v. Green, there was no denial of the right of confrontation in the instant case. Burrell was produced as a witness and he was available for cross-examination. It is true that by reason of Burrell’s claim of complete failure of recollection, the scope of effective cross-examination excluded inquiry with regard to the substantive evidence of guilt on the part of Burrell’s brothers. But this was no different, except in degree, from a case in which a declarant has made a detailed earlier statement and at the trial, despite efforts to refresh his recollection, remembers only some, but not all, of the details. In such a case, we do not understand that any court, before or after the decision in California v. Green, has held that the Confrontation Clause has been violated by admission of the statement in its entirety, and yet, if defendant’s contention is to be accepted, logic would require the exclusion, on constitutional grounds, of any earlier statement where there was only a claim of partial failure of recollection to the extent of the claimed failure of recollection.

Burrell was available for cross-examination about other events contemporaneous with the period of the alleged conspiracy ; he could have been cross-examined about possible bias or prejudice toward his brothers; and he could have been interrogated by the government about why he failed to recollect what he had previously said and what pressures, if any, had been exerted upon him by his brothers to encourage his failure of recollection of events incriminating them. The jury would thus have had a substantial basis on which to determine the truthfulness of Burrell’s previous statement and full opportunity to observe Burrell’s demeanor and manner of testifying so that it could make a determination of whether there was a genuine failure of recollection and its significance on the persuasiveness of his earlier statement. It is true that where complete failure of recollection is claimed, the truth of the earlier statement is not verified by an oath, but as Judge Learned Hand stated in DiCarlo v. United States, 6 F.2d 364, 368 (2 Cir. 1925):

The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.

It is also true that where complete failure of recollection is claimed the truth of the earlier statement is not tested by cross-examination with regard to its substantive content, but California v. Green, 399 U.S. at 168, 90 S.Ct. at 1940, indicates that we should reverse only if we conclude that “apparent lapse of memory so affected . . . [the] right to cross-examine as to make a critical difference in the application of the Confrontation Clause . . . ” For the reasons stated, we cannot reach that conclusion here.

III.

The money order bearing Hubert Payne’s name was admitted in conneetion with the testimony of Judy Lank-ford, who was a cashier in a Piggly-Wiggly grocery store in Grundy, Virginia. She testified that her duties included the sale of money orders and she positively identified the money order in question as one which she sold. She also identified the permanent record of the store, indicating that the money order had been sold there. She remembered that she sold the money order to two men who gave her $10 bills which she was subsequently advised were counterfeit and she identified Burrell as one of the men who made the purchase. On its face, the money order showed that it was cashed in Columbus, Ohio, and there was testimony that this was the city of Hubert’s residence.

„ We agree that the name Hubert Payne on the money order, standing alone, had little evidentiary weight to implicate Hubert, but we think that a proper foundation for admission of the money order had been laid and its admission into evidence was not error, even with- ■ out direct proof of who supplied the writing.

Affirmed.

1 . His brother Chester, a defendant who appealed, testified that Burrell has not had memory problems since the accident.

2 . Their original trial on September 7 resulted in a mistrial because of the inability of the jury to agree.

3 . It should be noted, however, that this statement was made on the implied factual basis that the declarant made an inconsistent statement at the trial rather than, as here, claimed, a complete absence of recollection.