U.S. v. Evans

• Decision Date: 18 December 1980
• Docket Number: No. 79-5290,79-5290
• Citation: 635 F.2d 1124
• Parties: 7 Fed. R. Evid. Serv. 717 UNITED STATES of America, Appellee, v. Robert EVANS, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1124

635 F.2d 1124

7 Fed. R. Evid. Serv. 717

UNITED STATES of America, Appellee, v. Robert EVANS, Jr., Appellant.

No. 79-5290.

United States Court of Appeals, Fourth Circuit.

Argued July 10, 1980.

Decided Dec. 18, 1980.

Stanley J. Reed, Asst. Federal Public Defender, Baltimore, Md. (Charles G. Bernstein, Federal Public Defender, John H. Morris, Asst. Federal Public Defender, Baltimore, Md., on brief), for appellant.

Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., Trudy Bond Foster, Third Year Law Student on brief), for appellee.

Before WINTER, MURNAGHAN and ERVIN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Evans was found guilty of bank robbery. 18 U.S.C. § 2113. He was personally identified as the perpetrator by two eyewitnesses. Bait money taken in the robbery was found on the premises in which he resided. Evans had gone on a substantial spending spree, beginning at a time subsequent to the date of the robbery.

Evans assigns as error the refusal to permit Evans' former girlfriend and co-worker, Denise Dawkins, to testify about a conversation she had held with him. She would have quoted him as explaining his sudden wealth as the consequence of his concealing on his residential premises a bank robbery fugitive, from whom he claimed to have received $10,000.

Evans' theory was that he was admitting that he had committed the crime of harboring a fugitive, 18 U.S.C. § 3, or of receiving stolen bank funds, 18 U.S.C. § 2113(c) and so was making a declaration against interest, which under Fed.R. of Evid. 804(b)(3), could come in, although hearsay. The penalties for harboring are markedly less than those for bank robbery. There is a 25 year maximum for bank robbery where, as here, there is the aggravation of assault with a dangerous weapon. There is a 10 year maximum for receiving stolen bank funds, and a maximum sentence for being an accessory equal to one-half of the maximum prescribed for punishment of the principal.

It may well be doubted whether a statement satisfies the declaration against interest exception to the hearsay rule where, viewed in narrow context, it technically constitutes a confession of crime and so is "against interest," but in actuality, the principal, and perhaps only function of the statement is to support a defense against a charge of a more serious crime. In reality, looked at in its totality, the statement is one for the declarant's penal interest, not against.

However, we need not resolve that question, ¹ for Fed.R. of Evid. § 804(b) (3), establishes a further requirement denying admissibility to a declaration against interest to exculpate the accused "unless corroborating circumstances clearly indicate the trustworthiness of the statement." The more general Fed.R. of Evid. § 804(b)(5) similarly requires "equivalent circumstantial guarantees of trustworthiness."

It was established that the spending spree of the defendant, Evans, began on May 3, 1979, the day after the robbery and several days before his contact on May 7, 1979 with the supposed bank robber whom he claimed to have secreted. The amount traced to Evans within the critical period, computed on expenditures comprising the spending spree plus the $11,814 in cash found in his residence by the F.B.I. greatly exceeded the $10,000 which the proffered testimony would have placed in the defendant's hands. Consequently, the testimony was not sufficiently trustworthy to warrant its admission. The trial judge did not err in excluding it.

The second contention of the defendant concerns the constitution of the jury. Shortly after the case had been committed to the jury and it had retired to commence deliberations, one member grew concerned about his hearing, during a break in the proceedings, a discussion of defendant by persons in or about the courtroom. He communicated the fact of his concern to the judge, following which the judge questioned him, and determined that he should be excused from further participation in the case. The defendant does not assert that discharge of that juror constituted error.

The judge had commenced but not completed his explanation that the defendant had the alternative of insisting on a mistrial or of electing to proceed with the eleven remaining jurors. See Fed.R.Crim.P. 23(b). The defendant had made clear that he preferred an alternative which would permit the case to continue, and that he did not want a mistrial, and the consequent beginning all over again before a different jury. ²

At this point, the first alternate juror, who had been discharged when the original twelve person jury retired to reach a verdict (Fed.R.Crim.P. 24(c)), happened back into the courtroom. She was questioned as to what if anything might have occurred in the way of discussion of the case with others, to destroy her impartiality or otherwise to render her unable to function as a juror. She replied that she had not discussed the case with anyone. The possibility of an eleven man jury seems to have received no further consideration.

The defendant expressed himself unequivocally in favor of proceeding with a twelve member jury comprised of the original eleven, with the first alternate added. ³ While nothing further was said about the eleven man jury alternative, certainly the defendant knew of it as a possibility, and no one denied him or tried to dissuade him from that alternative. We conclude that the twelve member jury as ultimately constituted was the intelligent, preferred choice of the defendant himself, and that implicitly the defendant had made clear his preference to it over a jury made up of only the original eleven members still remaining. ⁴

The question thus boils down to whether the jury, as ultimately composed, by reason of violation of Rule 24(c) of the Federal Rules of Criminal Procedure or on constitutional grounds was so fundamentally unfair that even a knowing attempt at waiver would be unavailing. Fed.R.Crim.P. 24(c) states that an "alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." The rule does not purport, however, to deny power to the trial court to reconstitute someone as a juror who previously has been discharged. Furthermore discharge of Alternate Juror No. 1 was not actually mandated in the present case by the language of the rule inasmuch as she did, in fact, replace a regular juror. United States v. Baccari, 489 F.2d 274 (10th Cir. 1973), cert. denied, 417 U.S. 914, 94 S.Ct. 2614, 41 L.Ed.2d 218 (1974) concerned the very situation. "At the close of argument and before the jury retired to begin its deliberations, the alternate juror was discharged as required by Fed.R.Crim.P. 24(c). During and near the outset of the deliberations one of the regular jurors became incapacitated and had to be hospitalized .... After discussing various alternatives, it was agreed by all parties that the alternate juror should be recalled and the deliberations continued." 489 F.2d at 275. The Court concluded "that in consenting to the substitution the defendants knowingly waived any objections that could have been interposed. The criteria for effective waiver of constitutional jury rights set forth in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), are well satisfied under the circumstances." Id.

We therefore must turn to the question of fundamental fairness or unfairness of what took place. On that point we are satisfied that the jury in the end was made up of twelve people who properly could dispose of the case. There would be no question had the first alternate juror been added to the jury before it retired. During the time she was discharged, no contamination of her state of mind took place. If a defendant prefers to go ahead with essentially the jury with respect to which he had been placed in jeopardy, he should not be forced to accept a whole new trial, with the consequence of being placed in jeopardy a second time, if his decision to move ahead is, as here, knowing and intelligent. ⁵ In short, with the defendant's knowing preference for going ahead with the alternate juror added to the eleven remaining jurors, manifest necessity to declare a mistrial had been dissipated. ⁶ There was no fundamental unfairness. Cf. Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980). It was appropriate to conclude that the defendant was in a superior position to decide in the circumstances what was best for him, rather than have his decision overridden by the judge. In the event, his hopes were not borne out; the jury found him guilty. But the defendant as well or better than the trial judge could ascertain whether he would have had any better chance or as good a chance with any other jury.

Defendant further contends that the jury was only told to continue its deliberations, and not specifically to begin them entirely anew. Yet no objection was raised as to the point. Nothing precluded the jury from starting from the very beginning all over again. The speculative assertion of prejudice from the unexceptional instruction, to which no objection was raised, was insufficient to justify reversal.

AFFIRMED.

ERVIN, Circuit Judge, dissenting.

Believing that the procedure employed by the trial judge in replacing a regular juror with an alternate juror after the jury had been deliberating for some length of time was, under the circumstances of this case, plain error, I respectfully dissent.

I.

Although I have no quarrel with the majority's characterization of the facts, I think a more extensive presentation of them is merited here.

Before the jury retired at 1:22 p. m., Nancy Stiles, an alternate juror, was excused. At 2:10 p. m., the trial judge was given a note written by Brian Bamberger, one of the regular jurors. Based upon this communication, the judge had the jury recalled to the courtroom. Shortly thereafter, at 2:14 p. m., the jurors were again excused...