Dutton v. Evans, No. 10

• Court: United States Supreme Court
• Writing for the Court: Mr. Justice STEWART, joined by THE CHIEF JUSTICE; Mr. Justice STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE; BLACKMUN; HARLAN; Mr. Justice MARSHALL, whom Mr. Justice BLACK
• Citation: 91 S.Ct. 210,400 U.S. 74,27 L.Ed.2d 213
• Parties: A. L. DUTTON, Warden v. Alex S. EVANS
• Docket Number: No. 10
• Decision Date: 15 October 1969

400 U.S. 74 91 S.Ct. 210 27 L.Ed.2d 213 A. L. DUTTON, Warden

v.

Alex S. EVANS.

No. 10. Argued Oct. 15, 1969. Reargued Oct. 15, 1970. Decided Dec. 15, 1970.

Syllabus

Appellee was convicted of first-degree murder following a trial in which one Shaw testified, over objection, concerning a statement Williams (an alleged accomplice) had made in the prison where both were incarcerated, after Williams' return there from his arraignment, that had it not been for appellee 'we wouldn't be in this now.' There were 19 other prosecution witnesses, one of whom (another alleged accomplice) gave detailed eyewitness testimony of the crime and the participation of the appellee and Williams therein. Shaw's testimony was admitted under a Georgia statute which, as construed by the Georgia Supreme Court, Evans v. State, 222 Ga. 392, 150 S.E.2d 240, allows into evidence a coconspirator's out-of-court statement made during the concealment phase of the conspiracy. Following affirmance of the conviction by the Georgia Supreme Court, appellee brought this habeas corpus proceeding in federal court. The District Court denied the writ but the Court of Appeals reversed, holding that the Georgia statute violated appellee's right to confrontation secured by the Sixth and Fourteenth Amendments. Appellee contends that the Georgia hearsay exception is unconstitutional since it differs from the hearsay exception applicable to conspiracy trials in the federal courts, which applies only if the out-of-court statement of a coconspirator was made in the course of and in furtherance of the conspiracy. Held: The judgment is reversed. Pp. 80-90; 93-100.

5 Cir., 400 F.2d 826, reversed.

Mr. Justice STEWART, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice BLACKMUN, concluded that:

1. The coconspirator hearsay exception applied by Georgia is not invalid under the Confrontation Clause of the Sixth Amendment, as applied to the States by the Fourteenth, merely because it does not coincide with the narrower exception applicable in

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federal conspiracy trials which results, not from the Sixth Amendment, but from the exercise of this Court's rule-making power respecting the federal law of evidence. Pp. 80-83.

2. In the circumstances of this case the admission into evidence of Williams' statement did not result in any denial of appellee's confrontation right since the out-of-court statement bore indicia of reliability that fully warranted its being placed before the jury. Pp. 83-90.

Mr. Justice HARLAN concluded that exceptions to the rule against hearsay must be evaluated, not by the Confrontation Clause (which is not designed to cope with the many factors involved in passing on evidentiary rules), but by the due process standards of the Fifth and Fourteenth Amendments. Thus evaluated, the Georgia statute is constitutional as applied in this case since the out-of-court declaration against interest involved here evinces some likelihood of trustworthiness and its exclusion from evidence is therefore not essential to a fair trial. Pp. 93-100.

Alfred L. Evans, Jr., Atlanta, Ga., for appellant.

Sol. Gen. Erwin N. Griswold for the United States, as amicus curiae, by special invitation of the Court.

Robert B. Thompson, Gainesville, Ga., for appellee.

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Mr. Justice STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice BLACKMUN join.

Early on an April morning in 1964, three police officers were brutally murdered in Gwinnett County, Georgia. Their bodies were found a few hours later, handcuffed together in a pine thicket, each with multiple gunshot wounds in the back of the head. After many months of investigation, Georgia authorities charged the appellee, Evans, and two other men, Wade Truett and Venson Williams, with the officers' murders. Evans and Williams were indicted by a grand jury; Truett was granted immunity from prosecution in return for his testimony.

Evans pleaded not guilty and exercised his right under Georgia law to be tried separately. After a jury trial, he was convicted of murder and sentenced to death.¹ The judgment of conviction was affirmed by the Supreme Court of Georgia,² and this Court denied certiorari.³ Evans then brought the present habeas corpus proceeding in a federal district court, alleging, among other things, that he had been denied the constitutional right of confrontation at his trial. The District Court denied the writ,⁴ but the Court of Appeals for the Fifth Circuit reversed, holding that Georgia had, indeed, denied Evans the right, guaranteed by the Sixth and Fourteenth Amendments, 'to be confronted by the witnesses against him.'⁵ From that judgment an appeal was brought to this Court, and we noted probable jurisdiction.⁶ The

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case was originally argued last Term, but was set for reargument. 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682.

In order to understand the context of the constitutional question before us, a brief review of the proceedings at Evans' trial is necessary. The principal prosecution witness at the trial was Truett, the alleged accomplice who has been granted immunity. Truett described at length and in detail the circumstances surrounding the murder of the police officers. He testified that he, along with Evans and Williams, had been engaged in switching the license plates on a stolen car parked on a back road in Gwinnett County when they were accosted by the three police officers. As the youngest of the officers leaned in front of Evans to inspect the ignition switch on the car, Evans grabbed the officer's gun from its holster. Evans and Williams then disarmed the other officers at gunpoint, and handcuffed the three of them together. They then took the officers into the woods and killed them by firing several bullets into their bodies at extremely close range. In addition to Truett, 19 other witnesses testified for the prosecution.⁷ Defense counsel was given full opportunity to cross-examine each witness, and he exercised that opportunity with respect to most of them.

One of the 20 prosecution witnesses was a man named Shaw. He testified that he and Williams had been fellow prisoners in the federal penitentiary in Atlanta, Georgia, at the time Williams was brought to Gwinnett County to be arraigned on the charges of murdering the police officers. Shaw said that when Williams was returned to the penitentiary from the arraignment, he had asked Williams: 'How did you make out in court?' and that Williams had responded, 'If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now.' Defense counsel objected to the introduction

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of this testimony upon the ground that it was hearsay and thus violative of Evans' right of confrontation. After the objection was overruled, counsel cross-examined Shaw at length.

The testimony of Shaw relating what he said Williams had told him was admitted by the Georgia trial court, and its admission upheld by the Georgia Supreme Court, upon the basis of a Georgia statute that provides: 'After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.' ⁸ As the appellate court put it:

"The rule is that so long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other.' The defendant, and his co-conspirator, Williams, at the time this statement was made, were still concealing their identity, keeping secret the fact that they had killed the deceased, if they had, and denying their guilt. There was evidence sufficient to establish a prima facie case of conspiracy to steal the automobile and the killing of the deceased by the conspirators while carrying out the conspiracy, and the statement by Williams made after the actual commission of the crime, but while the conspiracy continued was admissible.'⁹ (Citations omitted.)

This holding was in accord with a consistent line of Georgia decisions construing the state statute. See, e.g., Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726,

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cert. denied, 384 U.S. 1015, 86 S.Ct. 1964, 16 L.Ed.2d 1036; Burns v. State, 191 Ga. 60, 73, 11 S.E.2d 350, 358.

It was the admission of this testimony of the witness Shaw that formed the basis for the appellee's claim in the present habeas corpus proceeding that he had been denied the constitutional right of confrontation in the Georgia trial court. In upholding that claim, the Court of Appeals for the Fifth Circuit regarded its duty to be 'not only to interpret the framers' original concept in light of historical developments, but also to translate into due-process terms the constitutional boundaries of the hearsay rule.'¹⁰ (Footnotes omitted.) The court upheld the appellee's constitutional claim because it could find no 'salient and cogent reasons' for the exception to the hearsay rule Georgia applied in the present case, an exception that the court pointed out was broader than that applicable to conspiracy trials in the federal courts.¹¹

The question before us, then, is whether in the circumstances of this case the Court of Appeals was correct in holding that Evans' murder conviction had to be set aside because of the admission of Shaw's testimony. In considering this question, we start by recognizing that this Court has squarely held that 'the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right * * * made obligatory on the States by the Fourteenth Amendment.' Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Brook-hart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, ...