Evans v. Dutton

Citation400 F.2d 826
Decision Date20 November 1968
Docket NumberNo. 25348.,25348.
PartiesAlex S. EVANS, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Reidsville, Georgia, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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

Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before GEWIN and THORNBERRY, Circuit Judges, and EDENFIELD, District Judge.

GEWIN, Circuit Judge:

A year and a half after three police officers were found shot to death in Gwinnett County, Georgia, appellant Evans was tried before a jury and convicted of the murder of one of the officers. Since the jury did not recommend mercy, the Gwinnett County Superior Court sentenced him to die in the electric chair. Having exhausted his state remedies,1 Evans filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, alleging that his conviction had been obtained in violation of his sixth and fourteenth amendment rights. The district court denied the petitioned relief and Evans has appealed to this court. We have determined that Evans was denied his sixth and fourteenth amendment right to be confronted by the witnesses against him. We therefore reverse the judgment of the district court.

This case was argued before this court with Williams v. Dutton2 which was the appeal of an alleged coconspirator of Evans. The relevant background facts are set forth in Williams and we will not repeat them here. In addition, most of the issues raised are common to both cases. Since we must reverse on the confrontation question, we do not reach Evans' other contentions.3 However, we should point out that many of the same issues will arise upon the retrial of this case and, in the interest of sound judicial administration, we commend a reference to the treatment in Williams of those constitutional questions.

The facts upon which Evans' sixth amendment contention rests are not in dispute. During Evans' trial a witness, one Shaw, testified that Williams had stated to him that "if it hadn't been for that dirty-son-of-a-bitch, Alex Evans, we wouldn't be in this now." According to Shaw, Williams made this statement the day after his arraignment in Gwinnett County on the murder charge and in response to Shaw's inquiry as to how Williams had made out in court. At the time of the alleged statement, both Williams and Shaw were serving sentences for unrelated crimes in the federal penitentiary in Atlanta, Georgia.4

Evans' counsel made a timely and vigorous objection to the statement attributed to Williams, arguing that it was inadmissible under both state evidentiary law and the sixth amendment. The trial court overruled counsel's objection, holding the statement admissible in evidence under a Georgia statute which 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.5

The Georgia Supreme Court upheld the ruling of the trial court, stating:

The defendant Evans, and his coconspirator, 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.6

The confrontation clause of the sixth amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In the early case of Salinger v. United States the Supreme Court stated:

The right of confrontation did not originate with the provision in the Sixth Amendment, but was a common-law right having recognized exceptions. The purpose of that provision, this court often has said, is to continue and preserve that right, and not to broaden it or disturb the exceptions.7

Thus the fact that the framers of the Constitution did not intend to exclude hearsay evidence appears to have been viewed as having ossified the rule as then developed. This is a regrettably shallow assessment of the wisdom and foresight of those responsible for the destiny of this nation.8 But this view of the confrontation clause presented no difficulty so long as the clause was applicable only in the federal courts, because the confrontation-hearsay rule was then, for all practical purposes, a single principle in federal criminal cases.9 History complicated the role of the federal judiciary, however, when the fourteenth amendment was adopted and the federal constitutional standard of due process of law was imposed upon the states. Since many of the rights and privileges embodied in the Bill of Rights had long been regarded as fundamental to any concept of ordered liberty, they were expectably enforced against the states under the due process clause of the fourteenth amendment.10 The enforcement of the confrontation clause against the states now requires the application of a none-too-concrete standard to state hearsay rules which have experienced a various and even erratic evolution.11 Thus the duty of this court is not only to interpret the framers' original concept in light of historical developments,12 but also to translate into due-process terms the constitutional boundaries of the hearsay rule.13

In applying the confrontation clause to the states, the Court in Pointer v. State of Texas stated:

It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. . . . The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution.14

However, neither Pointer nor any subsequent decision adequately explains how and when a state hearsay rule exceeds permissible constitutional bounds. In spite of the Court's effusive language, the confrontation clause is certainly not violated merely because the defendant is not permitted to confront and cross-examine a witness against him. The Court has approved the admission, under a recognized exception to the hearsay rule, of a statement by a witness who is unavailable at the time of trial despite the fact that the right of confrontation is denied.15 In explaining a previously recognized exception to the right of confrontation, the Court in Barber v. Page stated:

It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination. . . . This exception has been explained as arising from necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.16

Generally but not unexceptionally, some evidence is better than none at all. Thus when rational substitutes for the benefits of confrontation actually exist, there is no reason to exclude hearsay evidence. Although we express no view as to the constitutional validity of any exception to the confrontation requirement which has not been ruled upon, it is important to point out that generally recognized exceptions to the hearsay rule have developed from a painful process of rationalizing the denial of confrontation.17

The Supreme Court has now made clear that the rationale of hearsay exceptions in criminal cases must be continually scrutinized and reevaluated. In Barber the trial court had admitted in evidence the transcript of testimony given at a prior trial upon the prosecutor's showing that the witness was outside the state. According to the traditional view, the evidence was admissible because a witness outside the jurisdiction is beyond the compulsory process of the court.18 The Supreme Court rejected this justification, stating:

Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased co-operation between the States themselves and between the States and the Federal Government have largely deprived it of any continuing validity in the criminal law.19

We therefore think it clear that, if an accused is to be deprived of the right to confront and to be confronted by the witnesses against him, there must be salient and cogent reasons for the deprivation. A criminal defendant cannot, consistent with the confrontation clause, be convicted upon the testimony of phantom witnesses whose credibility is unknown and unknowable by the trier of fact.

Appellee in this case states that Evans "demonstrates a rather basic confusion" in contending that his right to confrontation was infringed because witness Shaw did in fact appear in court and testify. However, we think the confusion is appellee's. The testimony objected to was not Shaw's but that attributed by Shaw to Williams who was not in court and who did not testify. Appellee further argues that the Supreme Court authority cited by Evans involved written evidence and that those cases, therefore, do not control the oral statement involved here. Since appellee has shown no basis for justifying a different treatment of written and oral evidence, we reject the distinction as untenable.

We have searched in vain for a reason to justify the...

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15 cases
  • Nolan v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 16, 1970
    ...consequently subject to the same Constitutional safeguards with respect to confrontation and cross-examination. And see Evans v. Dutton, 400 F.2d 826 (5th Cir. 1968), prob. juris. noted, 393 U.S. 1076, 89 S.Ct. 862, 21 L.Ed.2d 770 (1969). And it may also be conceded that Hines' plea of the ......
  • People v. Brawley
    • United States
    • United States State Supreme Court (California)
    • November 21, 1969
    ...the admission of evidence under that exception does not violate the federal constitutional right of confrontation. (Cf. Evans v. Dutton, 5 Cir., 400 F.2d 826, 828--832 (holding that the defendant's right of confrontation was violated by receipt of a coconspirator's extrajudicial statement u......
  • Hoover v. Beto, Civ. A. No. 68-H-581.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 29, 1969
    ...which this Court in this case must evaluate in terms of federal constitutionality. In the illuminating opinion in Evans v. Dutton, 5 Cir., 400 F.2d 826 (September, 1968), the task facing federal courts in this area is clearly stated: "* * * The enforcement of the confrontation clause agains......
  • Hoover v. Beto
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 18, 1972
    ......See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L. Ed.2d 213 (1970). Moreover, if there was error of constitutional proportions, the record shows that it was ......
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1 books & journal articles
  • Confrontation and Co-conspirators in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 14-3, March 1985
    • Invalid date
    ...675 (1983). 7. 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213(1970). 8. Evans v. State, 222 Ga. 392, 150 S.E.2d 240 (1960). 9. Evans v. Dutton, 400 F.2d 826 (5th Cir. 1968). 10. Dutton, supra, note 7 at 77. 11. See, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 149 (1970). 12. Dut......

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