U.S. v. Porter

• Decision Date: 28 July 1989
• Docket Number: No. 88-1558,88-1558
• Citation: 881 F.2d 878
• Parties: 28 Fed. R. Evid. Serv. 691 UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray PORTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 878

881 F.2d 878

28 Fed. R. Evid. Serv. 691

UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray PORTER, Defendant-Appellant.

No. 88-1558.

United States Court of Appeals Tenth Circuit.

July 28, 1989.

Frances Smylie Brown (Michael G. Katz, Federal Public Defender, with her on the brief), Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Emily Metzger (Benjamin L. Burgess, Jr., U.S. Atty., with her on the brief), Asst. U.S. Atty., Wichita, Kan., for plaintiff-appellee.

Before MOORE, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Danny Ray Porter appeals from his conviction of bank burglary in the United States District Court for the District of Kansas. On appeal, Porter challenges the trial court's refusal to admit certain hearsay testimony, the admission of other bad acts evidence, and the giving of an Allen instruction. Porter further asserts that the evidence is insufficient to support his conviction. We affirm.

I.

This case arises out of the following incidents:

Farmers State Bank Burglary. At approximately 4:25 A.M. on June 22, 1987, the Farmers State Bank in Beaver, Kansas, was burglarized. The perpetrators had cut the telephone and alarm wires leading into the bank and gained entry by forcing open a door. The bank's vault was cut open with an acetylene torch that had been stolen from a nearby business. Approximately $35,000 in currency and $150 in silver half-dollars was taken from the bank. Included in the money taken were twenty-five marked, one-dollar bills that were to be used as bait bills in the event of a robbery. The bank kept the serial numbers of the bait bills recorded for identification purposes.

Hudson State Bank Burglary. On the morning of August 27, 1987, the executive vice-president of Hudson State Bank arrived at the bank and discovered that it had been burglarized. Evidence of the break-in was similar to that at the Farmers State Bank burglary, as the perpetrators cut alarm wires prior to entering the bank and used an acetylene torch to break into the vault and safety deposit boxes. Approximately $531 in coins was taken from the vault, and the contents of several safety deposit boxes were removed.

Mayfield, Kansas, Grocery Store Attempted Burglary. Early in the morning of September 13, 1987, an alarm connected to the home telephone of Deputy Sheriff Richard Goodrum indicated that a burglary was in progress at the Mayfield, Kansas, grocery store. Goodrum proceeded to the grocery store with his vehicle lights off and saw two people come around the side of the building. He pursued them with his bright-beam headlights on, and from a distance of approximately twenty feet, he observed two men as they arose from behind some barrels and fled.

Additional officers soon joined the pursuit. As they were looking for the two suspects, they discovered a Silverado pickup truck parked near a dirt road approximately three-quarters of a mile from the grocery store. The officers used a jim tool to open the locked truck. Inside the truck they found, among other things, two wallets, which respectively contained the driver's licenses of Dick and Danny Porter. Deputy Sheriff Goodrum subsequently identified the men he had seen running from the store as the same men whose pictures appeared on the driver's licenses. The local sheriff then contacted the FBI.

An FBI agent conducted an investigation of the contents of the truck. The agent discovered that the wallet belonging to Dick Porter contained a silver certificate one-dollar bill with a serial number matching a number on the bait bill list from Farmers State Bank. Other evidence linking the occupants of the truck to the bank burglaries included a police scanner, a scanner book containing information regarding the radio frequencies used by law enforcement officers in various locales, a revolver, and a map cut out from a newspaper article detailing a series of burglaries of rural Kansas banks. Further investigation at the grocery store revealed that, as in the previous bank burglaries, the perpetrators had cut alarm wires leading into the building.

An information filed September 17, 1987, charged Danny and Dick Porter with two counts of violating 18 U.S.C. Sec. 2113 ¹ and 18 U.S.C. Sec. 2 ² in connection with the burglaries of the Farmers and Hudson state banks. FBI agents arrested Danny Porter on September 28, 1987, but Dick Porter evaded arrest. Dick Porter was subsequently shot and killed by FBI agents as he allegedly attempted to run over an FBI agent while fleeing his wife's residence.

The trial of Danny Porter commenced on January 26, 1988, and concluded on February 4, 1988, when the jury returned a verdict of guilty on Count I of the indictment--the Farmers State Bank burglary charge--and a verdict of not guilty on Count II--the Hudson State Bank burglary charge. This appeal followed.

II.

Porter contends that the district court erred by refusing to admit certain hearsay statements on behalf of the defense after allowing the prosecution to introduce hearsay statements in its case-in-chief. At trial the prosecution called Dick Porter's wife, Stephanie, who testified to numerous statements previously made by Dick, including statements regarding Dick and Danny's involvement in the Farmers State Bank, Hudson State Bank, and Mayfield grocery store incidents. The court, over objection, allowed such testimony into evidence, although it was unclear at that time whether such allowance was under rules 801 or 804 of the Federal Rules of Evidence. ³

The district court refused, however, to allow certain evidence proffered by the defense regarding Dick Porter's statements to the Porters' sister, Trina Smith. The court allowed Trina to testify to Dick's statement that he and Stephanie had "hit" the Farmers and Hudson state banks, but refused to admit Dick's statement exculpating Danny from involvement in those burglaries. The defense proffered that Trina Smith would have testified that when she asked Dick whether he had any messages for Danny, Dick told her to tell Danny not to plea bargain because Danny "should not have to do time when he has done nothing."

The court ruled that Dick's statements to Trina were severable for evidentiary purposes. The court allowed Trina to testify regarding the inculpatory statement made by Dick, apparently because it qualified under the statement against interest exception to the hearsay rule. See Fed.R.Evid. 804(b)(3). ⁴ The court ruled that the rest of Dick's statements to Trina, including the statement indicating that Danny was innocent, were inadmissible hearsay. Porter argues that the trial court erred in making this distinction because Dick's declaration of Danny's innocence was background information and necessarily part of Dick's statement against interest.

"In reviewing the evidentiary determinations of a trial court, we may not reverse in the absence of an abuse of discretion." United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). "The need for deference to a trial court ruling on a hearsay objection is particularly great because the determination of whether certain evidence is hearsay rests heavily upon the facts of a particular case." United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir.1988); see also United States v. Ospina, 739 F.2d 448, 452 (9th Cir.1984), cert. denied, 471 U.S. 1126, 105 S.Ct. 2658, 86 L.Ed.2d 274 (1985) ("The determination of admissibility of statements against penal interest under Evidence Rule 804(b)(3) is committed to the sound discretion of the trial court, and should not be disturbed on appeal absent an abuse of discretion.").

In order to admit hearsay evidence offered to exculpate the accused under rule 804(b)(3), the proponent of the evidence must show: (1) an unavailable declarant; (2) a statement against penal interest; and (3) sufficient corroboration to indicate the trustworthiness of the statement. See United States v. Lopez, 777 F.2d 543, 554 (10th Cir.1985). Here, the declarant was dead at the time of the trial so there was no question of unavailability regarding any of his statements. Not all of Dick's statements satisfy the second and third requirements for admission under rule 804(b)(3), however, and the district court correctly distinguished Dick's statements on this basis for the purpose of determining their admissibility.

In United States v. Lilley, 581 F.2d 182, 188 (8th Cir.1978), the court similarly separated portions of a declarant's statement for the purpose of determining which portions qualified as statements against interest admissible under rule 804(b)(3). The court first noted that three possible methods exist to handle statements containing both self-serving or neutral facts and facts that are against the penal interest of the declarant:

"First, admit the entire declaration because part is disserving and hence by a kind of contagion of truthfulness, all will be trustworthy. Second, compare the strength of the self-serving interest and the disserving interest in making the statement as a whole, and admit it all if the disserving interest preponderates, and exclude it all if the self-serving interest is greater. Third, admit the disserving parts of the declaration, and exclude the self-serving parts. The third solution seems the most realistic method of adjusting admissibility to trustworthiness, where the serving and disserving parts can be severed."

Lilley, 581 F.2d at 188 (quoting McCormick's Handbook of the Law of Evidence Sec. 279, at 677 (E. Cleary 2d ed. 1972)). The court went on to adopt the third solution:

The restriction advocated by McCormick excluding portions of statements which are not against the declarant's interest is in keeping with the reasoning behind the 804(b)(3) exception to the hearsay rule. Rule 804(b)(3) is based on the guaranty of trustworthiness which accompanies a statement against interest. To the extent that a statement is not against the declarant's...