U.S. v. Thomas

• Decision Date: 13 April 1978
• Docket Number: No. 77-5157,77-5157
• Parties: 3 Fed. R. Evid. Serv. 351 UNITED STATES of America, Plaintiff-Appellee, v. Rowland Chester THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

571 F.2d 285

3 Fed. R. Evid. Serv. 351

UNITED STATES of America, Plaintiff-Appellee, v. Rowland Chester THOMAS, Defendant-Appellant.

No. 77-5157.

United States Court of Appeals Fifth Circuit.

April 13, 1978.

Maurice S. Bell, George W. Cameron, Jr., Montgomery, Ala., for defendant-appellant.

Barry E. Teague, U. S. Atty., D. Broward Segrest, First Asst. U. S. Atty., David L. Allred, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

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

Before GODBOLD, HILL and FAY, Circuit Judges.

GODBOLD, Circuit Judge:

This case requires us to consider the dimensions of Federal Rule of Evidence 804(b)(3), which excepts from the hearsay rule statements against penal interest made by a declarant whose testimony is unavailable at trial. The appellant, Thomas, was tried for bank robbery jointly with Weeks. At trial Thomas sought to place a U.S. Magistrate on the stand to testify that Weeks, at the close of the preliminary hearing for all those indicted in the robbery, made statements exculpating Thomas. The trial judge ruled the evidence inadmissible, and both Thomas and Weeks were convicted. Only Thomas has appealed. We reverse his conviction.

Thomas, Weeks, and a third alleged participant, Echols, were accused of robbing a bank in Tuskegee, Alabama, where Thomas was a student at Tuskegee Institute, on December 1, 1976. Echols pleaded guilty and testified at trial for the government. Weeks did not testify. Echols gave the only account of the planning and execution of the robbery.

According to Echols, Weeks approached him the day before the robbery, and Echols agreed to Weeks' scheme. They met the next morning and drove to Weeks' apartment. Echols stated on cross-examination that during this ride Weeks mentioned that he had gotten "Rowland (Thomas) to drive for it." When Echols and Weeks reached Weeks' apartment, Thomas was waiting in his car in the parking lot. Thomas drove Weeks and Echols to the bank and let them out after circling the block at least once. Before leaving the car, Weeks instructed Thomas to pick them up on a designated corner. After holding up the bank, Echols and Weeks were picked up by Thomas and returned to their apartments. According to Echols, there was no discussion about the robbery while he and Weeks were in Thomas' car.

Thomas testified that he had never discussed the robbery with Weeks. Rather, on the morning of the robbery, as he was driving down the street, he passed Weeks and Echols driving in the opposite direction. Weeks waved Thomas down and asked Thomas to follow him to Weeks' apartment. Thomas agreed and turned his car around. While on the way to the apartment Weeks and Echols pulled their car over but waved Thomas onward. Thomas thus reached the apartment before Weeks and Echols. At the apartment Weeks asked Thomas to take him and Echols to the post office and bank. After Thomas let Weeks and Echols out at the bank he went to visit a friend, but the friend did not answer his door. Thomas then returned to pick up Weeks and Echols. As the two got into the car, Thomas saw a pillowcase full of money. He testified that this was the first time he knew he had been involved in a bank robbery. Thomas received none of the proceeds.

Thomas sought to introduce as exculpatory the testimony of the U.S. Magistrate who had conducted the preliminary hearing. Thomas contended, and the government was willing to stipulate, that after the hearing but before leaving the courtroom Weeks had stated "they ought to let Rowland Thomas go, he didn't have anything to do with it." Weeks made the statement not only within the hearing of the Magistrate but also in the presence of the attorneys for the prosecution and for the defendants and a newspaperman. The court rejected the offer of proof, stating that the government could introduce the statement but Thomas could not. The court was troubled by the possibility that introduction of the statement by Thomas would necessitate a mistrial for Weeks.

We hold that the statement was admissible when offered by Thomas because it was a statement against penal interest qualifying as an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3). ¹ To be admissible under 804(b)(3), a statement must meet three tests: the declarant's testimony must be unavailable; the statement must so far tend to subject the declarant to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true"; and the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.

Weeks' testimony was clearly unavailable under Rule 804(a)(1), which defines unavailability to include declarants not testifying because of privilege. Weeks did not take the stand, obviously relying on the privilege against self-incrimination. His unavailability based on the Fifth Amendment privilege satisfies 804(a)(1). See U. S. v. Mackin, 561 F.2d 958 (CA2, 1977), cert. denied, --- U.S. ----, 98 S.Ct. 490, 54 L.Ed.2d 319 (1977). Rule 804(a)(1) requires an express assertion of the privilege and a ruling by the court that the privilege constitutes unavailability, see 4 Weinstein's Evidence P 804(a) (01) (1976), but here the existence of the privilege and Weeks' right to assert it and Weeks' unavailability as a witness are patent. The trial court declared the evidence inadmissible before reaching issues raised by Rule 804. It would be mere formalism to abjure the merits of Thomas' claim in these circumstances. See U. S. v. Oropeza, 564 F.2d 316, 325 n. 8 (CA9, 1977).

The statement offered by Thomas satisfies the requirement that it be against Weeks' penal interest. The government argues that Weeks' statement was not against his penal interest because he did not expressly confess to the crime involved. We do not read Rule 804(b)(3) to be limited to direct confessions of guilt. Rather, by referring to statements that "tend" to subject the declarant to criminal liability, the Rule encompasses disserving statements by a declarant that would have probative value in a trial against the declarant. Thus, in U. S. v. Bagley, 537 F.2d 162 (CA5, 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977), we held to be against penal interest a statement that the declarant had given the accused a package of heroin instead of a package of Valium. Although the statement did not confess to the crime charged against the accused (possession with intent to distribute heroin), the statement implied the declarant's guilt of a felony, knowing possession of heroin.

In circumstances even more analogous to the present case, the First Circuit held a statement to be against penal interest. In U. S. v. Barrett, 539 F.2d 244 (CA1, 1976), the deceased declarant Tilley had discussed the crime being tried. The accused presented a witness to testify that Tilley had stated during this conversation "Bucky (the accused) wasn't involved. It was Buzzy." The court held the statement admissible under 804(b)(3) because

(W)e think that Tilley's (the declarant's) alleged remarks sufficiently tended to subject him to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true." Although the remarks did not amount to a clear confession to a crime . . . we do not understand the hearsay exception to be limited to direct confessions. See Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, ...