Favre v. Henderson
| Decision Date | 16 October 1972 |
| Docket Number | No. 71-3294.,71-3294. |
| Citation | 464 F.2d 359 |
| Parties | Robert FAVRE, Plaintiff-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Louise Korns, Asst. Dist. Atty., City of New Orleans, New Orleans, La., Jim Garrison, Dist. Atty., for the Parish of Orleans.
Jack C. Benjamin, New Orleans, La., for plaintiff-appellee.
Before WISDOM, GOLDBERG and CLARK, Circuit Judges.
Certiorari Denied October 16, 1972. See 93 S.Ct. 235.
The State of Louisiana appeals from District Judge Alvin B. Rubin's judgment granting Robert Favre's application for a writ of habeas corpus. The district court determined that the admission of certain testimony at Favre's state court trial denied Favre his right to be confronted with the witnesses against him and that the admission of the testimony was not harmless error. We affirm.
Robert Favre and Walter Holley were jointly charged in Louisiana state court by bill of information with armed robbery. See LSA-R.S. 14:64. Before the trial, Holley escaped. Favre was tried separately convicted and sentenced as a multiple offender to forty years at hard labor in the Louisiana State Penitentiary. The conviction was affirmed on appeal by the Supreme Court of Louisiana with one justice dissenting. State v. Favre, 255 La. 690, 232 So.2d 479 (La. S.Ct.1970).
Favre filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. He alleged that he had been denied the right to be confronted with the witnesses against him in violation of his Sixth and Fourteenth Amendment rights. Favre challenged the admission of certain testimony at his state court trial.
The nature of the case requires extensive quotation of testimony from the record.1 The State had called to the stand an officer of the New Orleans Police Department who had arrested Favre on December 6, 1966.
Mr. Alford, the prosecuting attorney, questioned the police officer.
The district court, finding that Favre had exhausted available state remedies, granted the application for habeas relief. The district court stated:
Favre v. Henderson, E.D.La.1970, 318 F.Supp. 1384, 1385-86.
On appeal by the State, this Court "vacated the judgment of the district court and remanded the cause to the district court for a determination of whether the admission of this evidence deprived the defendant of a trial that was fundamentally fair or whether the admission of this evidence, although erroneous, was merely cumulative and harmless". Favre v. Henderson, 5 Cir. 1971, 444 F.2d 127, 128.
On remand, the district court held that the admission of the disputed testimony was not harmless error and that it deprived Favre of a fair trial. The State has, once again, appealed.
The disputed testimony was relevant in two distinct, but related, ways. When read in context, the testimony of the police officer served, first, to bolster the identification of Favre as the person who committed the crime charged. In other words, the officer's testimony that information was received from two confidential informers, that these informers had provided reliable information in the past, and that information received from these informers had, in the past, led to convictions, served to establish that Favre was the person who committed the crime. Also, as the district court correctly noted, the testimony served to establish Favre's guilt. The logical inference from the officer's testimony was that the informers had given information to the officer that led him to believe that Favre was guilty and led the officer to arrest Favre. This inference was supported by the testimony that "information which the officer had received from these informants in the past resulted in the conviction of persons". In short, the jury was led to infer that the informers, who were not identified, were not present in court, and were not subject to cross-examination, believed that Favre was guilty of the crime charged. Inherent in the testimony, which may have been offered only to establish identification, was an assertion by an out-of-court declarant as to guilt. By saying, "Favre committed the crime", the out-of-court declarant said (1) "Favre committed the crime" identification and, (2) "Favre committed the crime" guilt.
Whether offered by the prosecution to establish identification, guilt, or both, the testimony, when considered in light of its logical inferences, is hearsay. "Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." McCormick, Evidence 460 (1954). See generally id. pp. 455-712; Wigmore on Evidence §§ 1361-1769 (1940); Wharton, Criminal Evidence pp. 569-765 (1955). Although the officer never testified to the exact statements made to him by the informers, the nature of the statements as discussed above, was readily inferred. The statements were offered to establish the truth of the matters asserted therein—identification, guilt, or both. The truth of the assertions depended upon the credibility of the informers who were not identified, not present in Court, and not subject to cross-examination.2
"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.3
To say that testimony is hearsay is not, however, to say that its admission violates the Confrontation Clause. Nor is the converse true.
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. * * * The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
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...witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay"); Favre v. Henderson, 464 F.2d 359, 364 (5th Cir. 1972) (emphasis added) (noting that the right to confrontation was violated where "testimony was admitted which led to the clear and......
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