U.S. v. Owens

• Decision Date: 12 May 1986
• Docket Number: No. 84-5015,84-5015
• Citation: 789 F.2d 750
• Parties: 20 Fed. R. Evid. Serv. 807 UNITED STATES of America, Plaintiff-Appellee, v. James Joseph OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 750

789 F.2d 750

20 Fed. R. Evid. Serv. 807

UNITED STATES of America, Plaintiff-Appellee, v. James Joseph OWENS, Defendant-Appellant.

No. 84-5015.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 9, 1984.

Decided May 12, 1986.

William Fahey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Allan Ides, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before NELSON, BOOCHEVER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

I. BACKGROUND

James Joseph Owens appeals his conviction under 18 U.S.C. Sec. 113(a) for assault with intent to commit murder.

On April 12, 1982, Correctional Officer John Foster was brutally assaulted while on duty at the federal prison at Lompoc, California. The evidence at trial established that Foster's attacker beat him repeatedly with a metal pipe. Foster sustained numerous injuries to his face, arms and hands as well as to his head. His injuries resulted in a profound loss of memory with respect to several events, including the attack itself.

On May 5, 1982, shortly before Foster left the hospital, he was questioned by FBI Agent Thomas G. Mansfield. Mansfield asked Foster who had assaulted him. Foster replied that it had been Owens, who was--and continues to be--a Lompoc inmate. Mansfield then displayed several photographs, including one of Owens, and Foster identified Owens' picture.

At trial, Foster testified that he had little memory of the attack. He testified that he could only remember feeling an impact on his head and seeing blood on the floor, and that he had no memory of seeing his assailant. While the record indicates that Foster was visited in the hospital by many people, including his wife who visited daily, his only clear memory of any visit concerned the May 5th visit by Mansfield. Foster recounted Mansfield's question as to who had attacked him and Mansfield's request that he make the photospread identification, as well as his responses to Mansfield.

On cross-examination, Foster reaffirmed his inability to recount the details of the attack. When asked if he remembered making any statements during his hospitalization, Foster testified that the only statements he remembered making were the statements of identification made to Mansfield. Defense counsel sought to refresh Foster's recollection with certain hospital records indicating that while he was hospitalized Foster had alternately disclaimed knowledge of his attacker and attributed the assault to someone other than Owens. However, Foster was still unable to remember making any statements other than the ones to Mansfield. Similarly, Foster was unable to remember any visitors other than Mansfield, nor could he remember whether any of these visitors had suggested that Owens had been his assailant. Finally, Foster reaffirmed that he could "vivid[ly]" recall his statement to Mansfield and that at the time he made the statement, he knew why he had identified Owens. However, he was unable to remember any fact or reason that had caused him to state that Owens was the assailant.

On appeal, appellant's principal challenge is to the district court's admission of Foster's out-of-court identifications of Owens, which he contends was erroneous on four separate grounds. ¹ First, Owens contends that since Foster had no recollection of his attacker, he lacked the personal knowledge required under Fed.R.Evid. 602 to testify to the identification. Second, Owens contends that Foster's initial statement implicating Owens was not an identification of someone "made after perceiving him" within the meaning of Fed.R.Evid. 801(d)(1)(C), and was therefore improperly admitted. Third, appellant argues that Foster's memory loss was such that he was not subject to cross-examination and therefore his testimony was inadmissible under Rule 801(d)(1)(C). Fourth, and related to his third contention, Owens argues that Foster's near-complete memory loss resulted in a deprivation of Owens' right to effective cross-examination in violation of the Sixth Amendment. Appellant would prevail under his challenge based on the Federal Rules of Evidence--the first three claims--if Foster's testimony were held to be inadmissible under either Rule 602 or Rule 801(d)(1)(C).

II. THE CLAIMS UNDER THE FEDERAL RULES OF EVIDENCE

A. Standard of Review

The district court's construction of the Federal Rules of Evidence is a question of law subject to de novo review. United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985). Questions of the admissibility of evidence which involve factual determinations, rather than questions of law, are reviewed for an abuse of discretion. Id. at 1291. When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate. If an "essentially factual" inquiry is present, or if the exercise of the district court's discretion is determinative, then we give deference to the decision of the district court; otherwise, we conduct a de novo review. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

B. Rule 602: "Personal Knowledge"

In relevant part, Fed.R.Evid. 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Appellant contends that because Foster was incapable of remembering whether or not he saw his attacker he lacked the requisite personal knowledge to testify to the out-of-court identifications of Owens.

Before an out-of-court identification can satisfy the provisions of Rule 602, the personal knowledge requirement must be applied twice. First, the witness, who testifies in the courtroom that a statement of identification was made out of court, must have personal knowledge as to the making of the out-of-court statement; he need not, however, have personal knowledge as to the events that were the subject of his statement. See Advisory Committee Note to Rule 602; 3 D. Louisell & C. Mueller, Federal Evidence Sec. 260 at 40 (1979); 3 J. Weinstein & M. Berger, Evidence p 602 (1985); S. Saltzburg & K. Redden,Federal Rules of Evidence Manual 305 (3d ed. 1982). Second, the declarant who made the out-of-court statement must have had personal knowledge of the events that were the subject of his statement. 4 D. Louisell & C. Mueller, Federal Evidence Sec. 415 at 95-96 (1980); McCormick on Evidence Secs. 10, 18, 300 (3d ed. 1984); Advisory Committee Note to Rule 803; 2 J.H. Wigmore, Evidence Sec. 670 (Chadbourn rev. ed. 1979); United States v. Lang, 589 F.2d 92, 98 (2d Cir.1978). In this case, unlike the normal situation, Foster is both the in-court witness and the out-of-court declarant.

Clearly, when Foster testified in court he had personal knowledge of the making of his statements of identification to Mansfield on May 5. Thus, there is no problem with the first application of Rule 602. There is, however, some difficulty with the second application. It is not at all clear that Foster ever had personal knowledge of the events that were the subject of his statements to Mansfield, that is, it is questionable whether Foster had personal knowledge of the identity of his assailant. ²

A person has "personal knowledge" of "a fact which can be perceived by the senses" only if he "had an opportunity to observe, and [has] actually observed the fact." Advisory Committee Note to Rule 602. Accord 2 Wigmore, supra, Sec. 650; McCormick, supra, Sec. 10. Personal knowledge of a fact cannot be based on the statement of another. 2 Wigmore, supra, Sec. 657; McCormick, supra, Sec. 10 at 25. ³

Foster testified that he was walking down an aisle "when I felt an impact on my head ... I looked down and saw blood on the floor and I--Now, I don't remember seeing at this time--I don't remember seeing the individual." Foster then said that "[t]he next thing I remember after receiving the blow to the head is many days later in the hospital." Finally, Foster stated that he could not recall "the person or persons" that struck him on the head. None of this testimony suggests that Foster saw his assailant. Indeed, it tends to suggest that he did not see his attacker and thus had no personal knowledge of the identity of his assailant. Moreover, Foster may have named Owens as a result of statements made to him during his hospital stay by one or more of his frequent visitors. Certainly the subject of the assault was one likely to arise when Foster and his friends or colleagues talked, and reports regarding the progress of the investigation may well have been conveyed to him. Unfortunately, as we have noted above, at the time of trial Foster had no recollection of any visits by persons other than Mansfield or the conversations that occurred during those visits.

The government argues in response that all of Foster's injuries were to the front of his body and therefore he must have seen his attacker. We agree that the location of the injuries provides support for the theory that Foster saw his attacker. On the other hand, it is possible that Foster was looking down or away and was taken by surprise when he was hit on the head; it is also possible that his assailant wore a mask or other disguise. Thus, the location of the injuries is not necessarily dispositive.

The question whether Foster had personal knowledge of the identity of his attacker is a mixed question of law and fact in which factual inquiries predominate, and thus, deference to the district court's ruling would normally be appropriate. Here, however, the district court did not rule on the issue after considering the evidence actually introduced. ⁴ Because the district court made its ruling without having the benefit of testimony, because the...