U.S. v. Chapman

• Decision Date: 02 March 1989
• Docket Number: No. 86-3552,86-3552
• Citation: 866 F.2d 1326
• Parties: 27 Fed. R. Evid. Serv. 728 UNITED STATES of America, Plaintiff-Appellee, v. John E. CHAPMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1326

866 F.2d 1326

27 Fed. R. Evid. Serv. 728

UNITED STATES of America, Plaintiff-Appellee, v. John E. CHAPMAN, Defendant-Appellant.

No. 86-3552.

United States Court of Appeals, Eleventh Circuit.

March 2, 1989.

Rehearing and Rehearing In Banc Denied April 20, 1989.

James J. Kennedy, III, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for defendant-appellant.

Michael A. Cauley, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

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

Before TJOFLAT and EDMONDSON, Circuit Judges, and FLOYD R. GIBSON ^*, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge:

John Chapman was convicted of the December 31, 1985 armed robbery of the Meritor Federal Savings Bank in Lakeland, Florida. The evidence shows that at approximately 10:00 a.m. on that day a man wearing an army green stocking mask over his face and armed with a handgun entered the bank, approached a teller, and demanded cash. The robber removed approximately $400 in cash from the teller's drawer and approximately $21,000 in cash from the bank's vault and then left the bank.

On July 16, 1986, a jury found Chapman guilty of bank robbery pursuant to 18 U.S.C. Sec. 2113(a), (d). The district court sentenced Chapman to 20 years in prison. Chapman now appeals his conviction, alleging: (1) that evidence was admitted at trial which violated his right to confront the witnesses against him; (2) that the same evidence was admitted in violation of the rule against hearsay; (3) that the admission of his wife's out-of-court statements was error because she asserted her marital privilege; (4) that he was prejudiced by unfair inferences created at trial regarding his wife's refusal to testify; (5) that a sketch admitted into evidence at trial was obtained in an illegal search of his trailer; and (6) that the evidence adduced at trial was insufficient to sustain his conviction.

On April 7, 1986, an anonymous caller telephoned the Lakeland Police Department stating that she had information about a bank robbery that had occurred in the area in late December. The woman indicated that she had heard of some robberies on the radio and that John Chapman had committed the robbery in which the robber wore a green ski mask. The caller also identified Chapman's place of employment. This telephone call was taped and transcribed by the Lakeland Police Department. After that call, the police went to Chapman's residence and interviewed Chapman's wife. (Chapman was not living at the residence at that time). While interviewing Mrs. Chapman, the police determined that she was the anonymous caller. In her interviews with the police, Mrs. Chapman restated her belief that her husband had committed a robbery; stated that sometime in January 1986 she observed her husband remove a bag containing bound bundles of money from the vent in their trailer; stated that he had never taken his dog to a veterinarian as he alleged to have done on the day of the robbery; stated that he purchased two automobiles in the month after the robbery; and stated that he borrowed a ski mask from a relative on the day before the robbery. The conversations between Mrs. Chapman and the police were admitted at trial. The district court admitted both the tape and transcript of the phone conversation, and the statements made by Mrs. Chapman in her interviews with police were introduced through the testimony of the police officer who interviewed her. Mrs. Chapman did not testify at trial. The government called her to the stand and in open court she claimed her spousal privilege not to testify against her husband.

Other evidence offered against Chapman at trial included the testimony of the two bank tellers who were working at the time of the robbery. They testified that Chapman had been in the bank on the day before the robbery, that he looked suspicious at that time, and that his build, size, and voice tone were the same as the robber's. The district court also admitted a sketch seized by the FBI in a search of Chapman's trailer made during his arrest. The government alleged at trial that the sketch depicted Chapman's robbery plans. Testimony was received from Mrs. Chapman's aunt that Chapman had borrowed a ski mask from her which matched the description of the mask worn by the robber. The government elicited testimony from two car dealers from whom Chapman made cash purchases of automobiles in the month after the robbery. Also, an employee of the animal hospital where Chapman claims to have taken his dog on the morning of the robbery testified that Chapman had not been to the animal hospital on that day.

Chapman took the stand at trial and denied having committed this crime. He testified that he did not go to work on December 31, 1985 because he had to take his dog to the veterinarian. He also stated at trial that the cash he used to purchase two vehicles in the month after the robbery came from his savings over the prior year.

I. Discussion

A. Confrontation Clause

The primary argument raised by Chapman in this appeal is that the district court's admission of his wife's incriminating out-of-court statements violated his Sixth Amendment right to confront the witnesses against him because his wife could not be cross-examined at trial due to her assertion of her marital privilege. 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." U.S. Const. Amend. VI. Essentially, this provision provides to criminal defendants the constitutional right to cross-examine adverse witnesses. See United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 841, 98 L.Ed.2d 951 (1988).

However, the right to confrontation is not absolute. This is because the question of the admissibility of hearsay evidence against a criminal defendant who has no opportunity for confrontation involves two very important but competing interests: the protection of the defendant's fundamental right to confront the witnesses against him, and the pursuit of the public's interest in the disclosure of reliable information that can lead to effective law enforcement. See Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). These competing interests dictate that under certain circumstances the defendant's right to confrontation must give way to allow the admission of incriminating evidence even though such evidence cannot be cross-examined. Two requirements must be met, however, before confrontation may be dispensed with. First, the prosecution must show that the out-of-court declarant is unavailable to testify despite its good faith efforts to obtain his presence at trial. Second, the prosecution must show that the out-of-court statements bear sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth. Roberts, 448 U.S. at 66, 74, 100 S.Ct. at 2539, 2543; Williams v. Melton, 733 F.2d 1492, 1496 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 508 (1984).

The requirement of unavailability is met in this case; the out-of-court declarant was unavailable in that she refused, on the basis of her marital privilege, to give any substantive testimony. The second requirement--that the out-of-court statements bear sufficient indicia of reliability--presents more difficulty under these circumstances.

Many different factors have been identified as significant in assessing whether extrajudicial statements bear sufficient indicia of reliability for Confrontation Clause purposes. The Supreme Court has noted that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. Apart from the indicia of reliability that form the bases of the hearsay exceptions, it is important to consider: (1) whether the truth of the out-of-court statements is corroborated by other evidence, see Williams, 733 F.2d at 1496; (2) the extent of the out-of-court declarant's personal knowledge of the defendant's identity and role in the crime; (3) the possibility that the statements are founded on faulty recollection; and (4) the circumstances under which the statements were made. See Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970).

Based on these factors, we conclude that Mrs. Chapman's extrajudicial statements bear sufficient indicia of reliability so that the district court's admission of them did not violate Chapman's right to confrontation. We reach this conclusion primarily because substantial circumstantial evidence corroborating Mrs. Chapman's statements was presented at trial. In the out-of-court conversations at issue here, Mrs. Chapman stated that her husband had committed a bank robbery, that she saw bound bundles of money in her husband's possession in the weeks after the robbery, that her husband did not take his dog to the veterinarian on the day of the robbery, that her husband purchased two cars within a few weeks after the robbery, and that her husband borrowed a ski mask a day or two before the robbery. Each of these facts was corroborated at trial. The bank tellers who were working at the bank at the time of the robbery testified that Chapman was in the bank the day before the robbery obtensibly doing some electrical work and that his size, build, and voice tone matched the robber's. Chapman himself corroborated his wife's testimony that he kept large sums of cash in the air conditioning vents underneath his trailer. Evidence that Chapman was not at a veterinarian's office on the day of the robbery was introduced through the testimony of an employee of the animal hospital where Chapman claims to have been. The car dealers from whom Chapman purchased...