U.S. v. Murphy, s. 81-5279
| Decision Date | 29 December 1982 |
| Docket Number | Nos. 81-5279,s. 81-5279 |
| Citation | 696 F.2d 282 |
| Parties | 12 Fed. R. Evid. Serv. 311 UNITED STATES of America, Appellee, v. King Ricardo MURPHY, a/k/a "Ricky," Appellant. UNITED STATES of America, Appellee, v. Reginald Arnold WADDELL, Appellant. UNITED STATES of America, Appellee, v. Reginald Arnold WADDELL, Appellant. UNITED STATES of America, Appellee, v. King R. MURPHY, Appellant. to 81-5282. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jeffrey T. Twardy, Alexandria, Va., for appellant Murphy.
E. Blair Brown, Alexandria, Va., for appellant Waddell.
Leonie M. Brinkema, Asst. U.S. Atty., Alexandria, Va., (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.
Before BUTZNER and HALL, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
The defendants, Murphy and Waddell, were indicted for the robbery of three banks in northern Virginia. In successive trials, they were convicted of two of those offenses after which the United States did not press the charges arising out of the robbery of the third bank. The indictments had been secured in substantial part on the basis of grand jury testimony of an alleged confederate who had entered a plea of guilty to one of the indictments and had been granted immunity by federal and state officials with respect to other pending and potential charges.
In two separate trials before two different petit juries, the relevant grand jury testimony was received in evidence. The circumstances differed, for in the first trial the grand jury witness took the stand and denied the truthfulness of his grand jury testimony, while in the second trial he refused to testify at all. Since the problems are related, however, we address them in one opinion.
Joseph Gregory Lattisaw tendered a plea of guilty to one of the three indictments and a commitment to testify fully about all three of the bank robberies before grand and petit juries. The government also agreed that his testimony would not be used against him, unless he testified untruthfully and was charged with perjury.
When called as a witness in the trial of the defendants for the armed robbery of the bank in Dumfries, Lattisaw answered routine questions about his recent criminal record, his plea of guilty to armed robbery of the bank in Springfield and the terms of the plea agreement, including the fact that if he failed to testify truthfully he could be prosecuted for the robbery of two other banks and for perjury. When asked whether he had robbed the Bank of Virginia in Dumfries, however, his response was, "I think I did," and he proceeded to testify that he could not remember his accomplices. To other questions about the event and the setting, Lattisaw claimed to remember nothing, except that neither of the two defendants on trial were with him when the bank was robbed. He remembered that he had given a written statement to an FBI agent and had appeared before the grand jury, but did not remember what he had said except that he had "told a whole lot of lies." He said that he did not know either of the two defendants.
The transcript of his grand jury testimony was then received in evidence.
Defense counsel cross-examined Lattisaw. He admitted to an expensive heroin habit, which he financed through thefts. When asked if an FBI agent had suggested to him the name Murphy or Waddell, he testified that the agents had suggested both names to him and that was the only reason he remembered them.
There were other witnesses. Their general description of the robbery was consistent with Lattisaw's grand jury testimony. One of them identified Waddell as the man with the two handguns while two others said that Waddell "looked like" that man. Murphy was not so identified, but, according to Lattisaw's grand jury testimony, he was waiting in the get-away car.
The grand jury testimony was properly admitted under Rule 801(d)(1) of the Federal Rules of Evidence. 1 The declarant, Lattisaw, testified at the trial and was actually cross-examined. The grand jury testimony was given under oath and was inconsistent with his trial testimony. Finally, a grand jury proceeding is an "other proceeding" within the meaning of the rule. See United States v. Mosley, 555 F.2d 191, 193 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977).
Interestingly, the Advisory Committee Notes to Sec. 801(d)(1), echoing the California Law Revision Commission's observations about a similar provision, state that it "will provide a party with desirable protection against the 'turncoat' witness who changes his story on the stand and deprives the party calling him of evidence essential to his case."
Lattisaw's vagueness about what he said during his appearance before the grand jury did not deny the defendants an opportunity for effective cross-examination. Lattisaw remembered the things crucial to the defense: he was a heroin addict, and the defendants were not his accomplices--indeed, he did not know them and had used their names only because of the suggestion of the FBI agents.
Nor was there any violation of the Sixth Amendment's Confrontation Clause as California v. Green, 399 U.S. 149, 159-61, 90 S.Ct. 1930, 1935-36, 26 L.Ed.2d 489 (1970), plainly teaches. Under Green, any prior inconsistent statement, sworn or unsworn, may come in as evidence of its content so long as the declarant is on the witness stand at the trial and subject at that time to cross-examination.
In his appearance before the grand jury with respect to the armed robbery of the United Virginia Bank in Springfield, Virginia, Lattisaw testified that he, Joyce Gantt and Waddell drove to Springfield in Waddell's Cadillac. Murphy drove down in his Oldsmobile, for they planned to switch cars. Murphy's Oldsmobile was parked a few blocks away from the bank, and Joyce Gantt was in the driver's seat of the Cadillac when the three men entered the bank. Lattisaw and Waddell wore masks pulled down completely to conceal their heads, faces and necks except for two round cutouts for their eyes, though during the robbery Waddell pulled his mask up somewhat. Waddell and Murphy were armed with handguns. Murphy stood guard near the door as Lattisaw and Waddell emptied the tellers' drawers. The three men ran from the bank to Waddell's Cadillac, in which Joyce Gantt drove them rapidly away. A few blocks away, the men told her to stop and they alighted to retrieve Waddell's Oldsmobile. Pursuant to instructions, Gantt, alone in the Cadillac, drove toward Washington.
Lattisaw testified that he had identified himself and Waddell in surveillance photographs. Murphy, standing guard near the door, was not included in the camera's field.
He described the plea agreement, and stated that he was not under the influence of drugs or alcohol and had used neither "in the last few days."
At the trial, the government called as its first witness Kenneth Gurne, a customer in the bank. He described the event much as Lattisaw had, including the fact that the robber who vaulted the counter (Waddell) had his mask partially rolled up when he left, which permitted Gurne to see that Waddell was a black man. He testified that Murphy looked "very much like" the one unmasked robber at the guard post.
Gurne followed the robbers out of the bank, saw them leaving in the Cadillac and was able to furnish a description of it.
The government's second witness was Joyce Gantt, who had been granted full immunity. Her testimony was entirely consistent with Lattisaw's grand jury testimony. As she drove toward Washington, however, she was stopped by a policeman and arrested for the robbery of the bank. In his grand jury testimony, Lattisaw had testified that the three men in the Oldsmobile saw that the Cadillac had been stopped by a policeman, though the men, of course, did not stop. On cross-examination, Gantt admitted using an alias. She was a heroin addict, supporting a $100 a day habit by shoplifting.
The government next called Lattisaw. From its experience with Lattisaw during the trial the week before, it anticipated trouble. Several days before the trial, the government had supplied defense counsel with a transcript of Lattisaw's grand jury testimony. Before calling Lattisaw, counsel discussed the possible problems with the trial judge.
When called, Lattisaw refused to be sworn. The judge declared Lattisaw an unavailable witness within the meaning of Federal Rule of Evidence 804(a)(2), and ruled that a transcript of his grand jury testimony could be received in evidence under Rule 804(b)(5). When the jury returned to the courtroom, the judge informed the jurors what had happened, but cautioned them that Lattisaw had not been cross-examined with respect to his grand jury testimony.
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