Park v. Huff, 73-1897.

• Decision Date: 17 June 1974
• Docket Number: No. 73-1897.,73-1897.
• Citation: 493 F.2d 923
• Parties: A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 923 (1974)

A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.

No. 73-1897.

United States Court of Appeals, Fifth Circuit.

May 6, 1974.

Rehearing Granted June 17, 1974.

Wesley R. Asinof, Atlanta, Ga., for petitioner-appellant.

Tony H. Hight, Dist. Atty. Assoc., Arthur K. Bolton, Atty. Gen., Atlanta, Ga., Nat Hancock, Jefferson, Ga., for respondent-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing En Banc Granted June 17, 1974.

WISDOM, Circuit Judge:

A. C. Park, the petitioner-appellant, was convicted in a Georgia court of murdering a local prosecuting attorney. The evidence against him consisted of hearsay statements introduced under Georgia's co-conspirator exception to the hearsay rule. After his conviction was affirmed by the Georgia Supreme Court, Park sought federal habeas corpus relief. The district court denied Park's petition. The hearsay testimony introduced against Park was "crucial" and "devastating" under Dutton v. Evans, 1970, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213; it was unreliable; and the State made no showing that the declarants were unavailable to testify at trial. The introduction of the hearsay testimony, therefore, violated the accused's sixth amendment right of confrontation. We reverse.

I.

Between 7:00 and 7:30 in the morning on August 7, 1967, Floyd Hoard, the Solicitor General of the Piedmont Judicial Circuit in Georgia, was killed when dynamite wired to the ignition system of his car exploded. After a four-month investigation, a grand jury in Jackson County, Georgia, indicted five persons for the murder: Douglas Pinion, J. H. Blackwell, Loyd George Seay, George Ira Worley, and Park. The prosecution's theory was that the killing had been accomplished through a three-tiered conspiracy — Blackwell, Seay, and Worley had purchased the dynamite and wired it to the coil of Hoard's car; Pinion had paid the three $5,500 for the murder; and Park had been the prime mover of the project and had furnished at least $5,000 of the purchase price. As a motive for the killing, the State postulated Hoard's recent law-enforcement activities against Park, Pinion, and Seay, who were operating on a large scale the business of selling liquor in a dry county. Hoard had had Park's home and an adjacent building raided, had instituted padlock proceedings against Park, had confiscated a great quantity of illegal alcohol, and had filed criminal charges against Park. Park had paid fines totalling $6,300. Park, Pinion, and Seay had been engaged in their illegal liquor business for many years. There was testimony that Pinion acted as Park's "enforcer" and that he used guns and administered beatings in the prosecution of their illicit business. On the day of his death Hoard had planned to present evidence against the liquor conspiracy to a grand jury.

Seay and Blackwell pleaded guilty to murder; Pinion and Worley were convicted of murder after trial. All were sentenced to life imprisonment. Park entered a plea of not guilty and was tried separately. He denied any knowledge of the murder and stated to the jury that he had not seen or talked with Seay for at least two years before Hoard's death.

Worley and Pinion did not testify at Park's trial. Blackwell and Seay testified for the State¹. Blackwell's testimony was largely corroborative; he had never seen nor talked with Park. But Seay's testimony was determinative. Indeed, the only evidence directly implicating Park in the slaying came from Seay's lips. Seay related several critical conversations he had had with other alleged members of the conspiracy. The testimony most damaging to Park were out-of-court declarations by Pinion. According to Seay, Pinion told him that "a man" wanted Hoard "done away with" and was willing to pay $5,000. Seay responded that he would "check around for him and see if anybody wanted to do it". Seay spoke to Worley who said he would murder Hoard, but he wanted $7,500 instead of $5,000. Seay then went back to Pinion and told him that he had found someone to do the job for $7,500. Pinion responded that he did not think "the man" would pay more than $5,000, but that he would inquire. Pinion left and was gone about forty-five minutes. When he returned he told Seay, "The old man won't go up any more. I will put $500 on it. Make it $5,500." It was established at trial that Park was generally known in the community as the "old man". The only other evidence directly implicating Park in the murder scheme was Seay's testimony that Worley had said that, if Seay did not go through with the killing, the "old man" would have "something done" to him or to his family². Seay testified that "other than what Doug Pinion told" him he knew nothing as to Park's "having any connection with" the money given him by Pinion, and other than that "he had no contact with Mr. Park at all with respect to any killing".

Park was found guilty and sentenced to death. The Georgia Supreme Court reversed, because Park had been improperly deprived of his right to make the opening and closing argument to the jury³.

At Park's second trial the State called Blackwell as a witness. He refused to be examined on any matter, stating, "I stand on the Fifth Amendment". His sworn testimony at the original trial was read to the jury. An agent of the Georgia Bureau of Investigation, testifying for the State, related the contents of a confession Blackwell had given to him. The statement did not refer, even inferentially, to Park.

Seay was also again called as a witness for the State. After stating his name and place of incarceration, he refused to answer further questions, relying on his fifth amendment privilege against self incrimination. Over Park's objection, the State read to the jury the transcript of Seay's testimony at the first trial. Later, Seay was recalled to the witness stand, and on direct examination he repeated his testimony concerning his conversations with Pinion and Worley⁴. Seay's testimony with regard to these critical conversations was introduced a third time through an agent of the Georgia Bureau of Investigation, who related the content of Seay's confession to him. Neither Pinion nor Worley was called as a witness. Park was again convicted and sentenced to death, and this time the Georgia Supreme Court affirmed⁵. The United States Supreme Court, without ruling on the merits, vacated the judgment insofar as it left undisturbed the death penalty imposed, and directed further proceedings consistent with Stewart v. Massachusetts, 1972, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744⁶. Park was resentenced to a life term⁷. He then filed in the district court a petition for a writ of habeas corpus. The court denied his petition. Park appeals, contending that his right to confrontation was violated by the introduction into evidence of the inculpatory hearsay statements Seay attributed to Pinion and Worley⁸.

II.

"Hearsay" is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted". Federal Rules of Evidence, Rule 801 (1972). Most definitions are substantially similar. See United States v. Williamson, 5 Cir. 1971, 450 F.2d 585, 589, cert. denied, 405 U.S. 1026, 92 S.Ct. 1297, 31 L.Ed.2d 486; ALI, Model Code of Evidence, Rule 501; McCormick, Law of Evidence § 246 (2d ed. 1972); 5 Wigmore, Evidence § 1361 (3d ed. 1940); 6 id. § 1766. Taking these definitions literally, the statements of Pinion and Worley, recounted by Seay, were analogous to but not identical with typical hearsay in that they were not "offered to prove the truth of the matter asserted"; whether in fact the "old man" would raise the ante or would have "something done" to Seay's family if he did not cooperate was beside the point. The out-of-court statements of Pinion and Worley, however, clearly implied that Park was involved in the conspiracy to murder Solicitor General Hoard. As proof of Park's guilt the statements formed evidence just as damaging as direct declarations that Park was a leading member of the murder conspiracy. And the truth of the implication depended on the credibility, the trustworthiness, of the declarants who were not subject to cross-examination. See Favre v. Henderson, 5 Cir. 1972, 464 F.2d 359, 362, cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L. Ed.2d 193. Twenty-five years ago, Professor Morgan analyzed the hearsay rule and identified its rationale as based on the untrustworthiness of hearsay statements: "Should we not recognize that the rational basis for the hearsay classification is not the formula, `assertions offered for the truth of the matter asserted,' but rather the presence of substantial risks of insincerity and faulty narration, memory, and perception ?" Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 218 (1948).⁹

Implied assertions may in certain circumstances carry less danger of insincerity or untrustworthiness than direct assertions, see United States v. Pacelli, 2 Cir. 1974, 491 F.2d 1108 at 1116, but not always. The danger of insincerity or untrustworthiness is decreased only where there is no possibility that the declarant intended to leave a particular impression. Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682, 686 (1962); Rucker, The Twilight Zone of Hearsay, 9 Vand.L.Rev. 453, 478 (1956). Here we cannot exclude that possibility¹⁰; Pinion's and Worley's statements carry the implication that they mentioned the "old man" to Seay with the intention of communicating to him, as a fact, Park's participation in the plot.

When the possibility is real that an out-of-court statement which implies the existence of the ultimate fact in issue was made with assertive intent, it is essential that the statement be treated as hearsay if a direct declaration of that fact would be so treated....