Hutchins v. Wainwright, 83-5256

• Decision Date: 19 September 1983
• Docket Number: No. 83-5256,83-5256
• Parties: 14 Fed. R. Evid. Serv. 223 Michael HUTCHINS, # 053170, Plaintiff-Appellee, v. Louis L. WAINWRIGHT, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 512

715 F.2d 512

14 Fed. R. Evid. Serv. 223

Michael HUTCHINS, # 053170, Plaintiff-Appellee, v. Louis L. WAINWRIGHT, et al., Defendants-Appellants.

No. 83-5256.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1983.

Rehearing Denied Nov. 2, 1983.

Penny H. Brill, Asst. Atty. Gen., Miami, Fla., for defendants-appellants.

Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Petitioner, Michael Hutchins, was found guilty of armed robbery and assault with the intent to commit second degree murder. The conviction arose from Mr. Hutchins' robbery of a taxicab driver on July 17, 1975. The pivotal issue at trial was the identity of the perpetrator. The taxicab driver did identify the petitioner as the man who had robbed him. The only other evidence against the petitioner is the evidence which formed the basis of this appeal.

After the robbery occurred, two investigative police officers were sent to the scene of the crime. During their investigation, it appears that a young black male approached the officers and informed them of who committed the crime and where the perpetrator resided. It was based on this information that the petitioner's photograph was incorporated into a spread and shown to the victim, leading to the defendant's being charged. However, the informant never appeared or testified at the trial. The two police officers who received the tip from the anonymous informant refused to identify the young man to either the prosecution or the petitioner.

At trial, during the opening statement, the prosecutor detailed for the jury the police investigation leading to the arrest of the petitioner. In this statement the prosecutor spoke of how Detective Purdy had been contacted by a young man during a canvas of the area where the crime had occurred. Counsel for petitioner objected to this statement as referring to inadmissible hearsay. A bench conference was held where the court was informed that this young man had provided the police with information leading them to the residence of the petitioner. The prosecution further stated that the two investigative police officers had refused to reveal the identity of the witness to either the prosecutor or the petitioner. The prosecutor maintained he would only inform the jury of "what the detectives did" based on their conversations with the young man, but he would not adduce those conversations for the jury or the fact that the young man had directed the officers to the petitioner's residence. The court ruled that the prosecutor would be permitted "to inquire of the officer simply as a result of his investigation what did he do." This questioning could refer to the presence of a bystander at the scene of the crime who left some kind of notation in the officers' car which prompted the police to further investigate the area.

During direct examination of the police officers, testimony was elicited, over objection, that the officers had met with a young male in the vicinity of the robbery and that they had driven with the young man to the area of 1840 N.W. 60th Street (the petitioner's address). During closing argument, the prosecutor referred to the meeting between the police and the unidentified young man in the following manner:

Mr. Goldstein: He testified he went to 1840 Northwest 60th Street, and as you remember later on, that is where the Defendant lives.

He testified that he got out of the car, and he conducted an investigation on the scene there, that he went back to his office, and he made out this photo display, and put the photograph of Michael Hutchins in the photo display, and detective went to the hospital ....

* * *

* * *

Then afterwards the detective got out a warrant; went to the State Attorney's Office; went to a judge; got a warrant for Michael Hutchins' arrest; went back to that address, and where was the address? 1840 Northwest 60th Street ....

The prosecutor went on to explain the absence of the unidentified witness by saying "[a] crime of this nature creates fear" and that "people who have the fear do not want to get involved * * * [t]hey do not want to physically face the accused." The prosecutor then urged the jury "not only to rely on what you have heard here," which he described as "the tip of the iceberg," but "to consider all the circumstances involved in this crime." Petitioner asserts that as a result of the introduction into evidence of the substance of statements attributed to an unidentified and undisclosed informant, and the reliance upon those statements as evidence of the guilt of the defendant, violated petitioner's right to confrontation under the sixth amendment to the United States Constitution.

In this case, it is clear from the record that an anonymous informant contacted the investigating officers and informed them that he knew who had committed the crimes. He told the officers the name and the address of the assailant. However, for whatever reasons, this informant refused to testify at the defendant's trial and the investigating officers refused to name the informant to both the prosecution and the defense. The prosecutor's knowledge of this information placed him in a difficult position. He zealously attempted throughout the trial to place into evidence that there existed an eyewitness informant. The trial court attempted to allow portions of this evidence in under the theory that the officers were entitled to testify as to their investigative efforts. However, in closing argument the prosecutor could no longer withstand the temptation to spell out for the jury the existence of this anonymous informant. In doing so, the prosecutor, in essence, informed the jury that there existed an eyewitness to this crime who accompanied the police to the residence of the defendant, but who refused to testify out of fear of retribution. This situation was aptly described by the prosecutor as "a problem for everybody." Indeed, this court agrees that it is a problem of monumental concern when there is a witness who could assist the jury in its truthfinding process, but is afraid to testify. Reference to such a witness's statements, however, is inadmissible under the constitution. Here, the prosecutor gave in to the temptation to provide for the jury this inadmissible evidence. This violated the defendant's right to confront the anonymous, non-testifying witness. The prosecutor violated the defendant's rights when he explained to the jury that this anonymous informant was afraid to testify, but that it was clear he was an eyewitness to the crime who had identified to the officers, the defendant as the perpetrator.

The sixth amendment right of an accused to confront the witnesses against him or her is a fundamental right. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Although we do not doubt the existence of this informant, he was never present, nor did he testify at the trial. The purpose of a defendant's right to confront a witness who testifies against him or her is not only to allow the defendant a chance at cross-examination, but to allow the jury to observe, and judge the credibility of the witnesses. The Supreme Court summarized the importance of the confrontation clause when it stated:

The mission of the Confrontation Clause is to advance practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.'

Dutton, 400 U.S. at 89, 91 S.Ct. at 220, quoting California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1969).

In analyzing a confrontation clause inquiry, the court must initially determine whether the out-of-court statements are within the hearsay rule. The trial court concluded and we agree that the statements elicited by the prosecutor of the investigating officers were hearsay. Although the officers' testimony may not have quoted the exact words of the informant, the nature and substance of the statements suggesting there was an eyewitness and what he knew was readily inferred. See Favre v. Henderson, 464 F.2d 359, 362 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972). Indeed, the violation became clear when the prosecutor in final argument, urged the jury to draw the inference that the witness knew who committed the crime but was afraid to come to court.

A finding that the statements were hearsay does not necessarily require a finding that the confrontation clause has been violated. See e.g., Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). To establish that the admission of the hearsay statements did not violate the confrontation clause, the prosecution must show that the out-of-court declarant is unavailable for trial and the statements bear a sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth. Ohio v. Roberts, 448 U.S. 56, 62-66, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980). In this case neither of the above requirements were established. The prosecution's only answer to the non-production of the informant was that the investigating officers refused to identify the witness. Additionally, the prosecution provided no basis for evaluating the credibility of the unnamed informant. Accordingly, having not met either requirement under Roberts, the admission of these statements violated the confrontation clause. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Hoover v. Beto, 467 F.2d 516 (5th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972).

It is also a fundamental principle of trial practice that a prosecutor may not seek to obtain a conviction by presenting to the jury any evidence outside of...