United States v. Carter
| Citation | 491 F.2d 625 |
| Decision Date | 22 March 1974 |
| Docket Number | No. 72-3732.,72-3732. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cassius CARTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fred C. DeLong, Jr., (Court-appointed), L. Carl Hagwood, Greenville, Miss., for defendant-appellant.
H. M. Ray, U. S. Atty., Norman L. Gillespie, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
Defendant Cassius Carter was convicted in federal district court on two counts of violating the Dyer Act1 by receiving and concealing two stolen automobiles which had moved in interstate commerce from Chicago, Illinois to Washington County, Mississippi. On this appeal defendant alleges that the trial court erred: 1) in excluding as hearsay defendant's testimony regarding a conversation with the party from whom he claims to have received one of the stolen automobiles; and 2) in delivering a prejudicial supplementary charge to the jury on circumstantial evidence. We find merit in both of these contentions and hold that the district court's supplemental instructions so prejudiced defendant's right to a fair trial as to require a remand for a new trial on both counts of the indictment. We therefore reverse.
A. Count I, 1968 Pontiac Catalina. Count I of the indictment charged that on or about May 18, 1972, Cassius Carter received and concealed a stolen 1968 Pontiac Catalina automobile, which had moved in interstate commerce from in or near Chicago, Illinois to Washington County, Mississippi, knowing the automobile to have been stolen. The government established that the Catalina had been stolen from a Chicago street in February 1972. Defendant was stopped and arrested while driving the automobile in Washington County, Mississippi in May 1972. He presented an Illinois drivers license in the name of "Earl W. Bratcher." At the time of the arrest the stolen automobile bore a stolen Mississippi license plate, which had been taken from another car in March 1972.
Defendant claimed that he had secured the Catalina from his cousin, David Carter, who had given defendant permission to use the automobile in return for making needed repairs until David returned from a trip to California. Defendant denied having any knowledge that either the automobile or the license plates were stolen.
B. Count II, 1971 Pontiac GTO. Count II of the indictment charged that on or about August 7, 1971, defendant received and concealed a stolen 1971 Pontiac GTO, which had moved in interstate commerce from in or near Chicago, Illinois to Washington County, Mississippi, knowing the automobile to have been stolen. The stolen automobile belonged to one Earl W. Bratcher, who testified that his Illinois driver's license and title certificate were in the glove compartment of the car at the time of the theft. During the summer of 1971 defendant was employed as a dump truck operator under the name of Earl W. Bratcher, and he used the Earl W. Bratcher driver's license during the course of his employment. Defendant was arrested in August 1971 in Greenville, Mississippi in possession of the stolen GTO.
Defendant testified that he had obtained the car from a friend whom he knew by the name of Earl Bratcher. He described this Bratcher as a Negro male, approximately 27 years old — not the Earl W. Bratcher who testified at the trial and identified himself as the owner of the stolen GTO. Defendant claimed to have lent money to his acquaintance Bratcher on two or three occasions, which he assumed was the reason Bratcher had lent him the car. According to defendant's testimony, Bratcher had informed him that he was unable to get his car out of the repair shop because he was out of money, and that if defendant would get the car and repair it, he could use it while Bratcher was out of town. Because defendant did not have a driver's license, Bratcher gave him permission to use his license as well as the title to the GTO.
To summarize the evidence on both counts of the indictment, the government demonstrated clearly that defendant had received the two automobiles, both of which had been stolen and both of which had moved in interstate commerce. The only element of either offense subject to dispute was whether defendant knew the automobiles to have been stolen. The jury had primary responsibility for making that critical determination and thus for weighing the evidence and making credibility choices. Therefore, the evidence the jury was permitted to hear and the instructions as to how the jury should evaluate that evidence were critical to the fairness of the trial.
Defendant first argues that the trial court erred in excluding testimony offered by defendant regarding conversations with his cousin, David Carter, about the 1968 Pontiac Catalina, the subject of Count I of the indictment. After his arrest defendant was interviewed at the Greenville, Mississippi city jail by FBI Agent John Neeley. Agent Neeley obtained an oral statement from defendant concerning his possession of the stolen Catalina, including his alleged receipt of the car from cousin David Carter. At trial Agent Neeley testified from his typewritten report of the statement.2
When defendant took the stand later in the trial, he sought to give his own account of his receipt of the car from David Carter. The district court permitted defendant to testify about "what happened," but refused to allow him to testify about his conversations with David Carter at the time of the transaction on the ground that such testimony would be "hearsay evidence." The excluded testimony, however, did not fall within the hearsay rule at all, and the district court erred in sustaining the government's objection to the testimony on that basis.
Application of the hearsay rule and its various exceptions presents one of the most treacherous tasks in the law of evidence; but the most fundamental element of the hearsay rule is the critical distinction between the testimonial or assertive use of human utterances and their non-testimonial use:
The theory of the Hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply.
6 Wigmore, Evidence (3d ed.) § 1766 (emphasis in original). The bases for the distinction are the very reasons for the hearsay rule itself: 1) the out-of court declarant generally speaks without the solemn oath administered to in-court witnesses; 2) the trier of fact has no opportunity to observe the demeanor of the out-of-court declarant; and 3) the adversary has no opportunity to cross-examine the absent declarant whose statement is reported by the witness. All of these reasons for the rule vanish when the credibility of the out-of-court asserter and the veracity of his statements are not at issue.
In the conversations about which defendant sought to testify, neither the credibility of the absent declarant, David Carter, nor the truth of the matters he asserted was relevant to the proceeding. Defendant wanted to relate the conversations in order to bolster his claim that he had no knowledge that the Pontiac Catalina allegedly obtained from his cousin was stolen. Whether or not defendant knew the automobile was stolen might have depended on what his cousin told him; it could not have depended on whether his cousin was telling him the truth. If defendant had been allowed to tell his story as he wished, the jury would have been faced, not with the issue of David Carter's credibility, but with assessing the credibility of Cassius Carter, who was under oath and subject to cross-examination.
The government does not argue on this appeal that defendant's testimony fell within the hearsay exclusion. Rather the government takes the position that the trial court's error, if any, was harmless, because defendant was not prevented from submitting his explanatory evidence in the presence and hearing of the jury. The trial transcript reveals that defendant was able to testify about the substance of the transaction with his cousin. In response to questions on direct and cross-examination, defendant explained: that David Carter had towed the car to Mississippi from Illinois; that David left the car with defendant, and went on to Jackson and then to California; that the car had some dents in it and did not run very well; that David and Cassius agreed that Cassius would repair the car and keep it until David could get back from California; and that David returned to Hollandale, Mississippi to pick up the car, but left when he learned that Cassius was in jail because of the car. In view of this testimony the government argues that the trial court's evidentiary ruling did not impair defendant's substantial rights and thus did not constitute reversible error. Fed.R.Crim.P., Rule 52(a).
Defendant responds that, although questioning revealed certain elements of the transaction, he was nevertheless prevented from explaining to the jury in his own words what his cousin told him when he turned over possession of the stolen Pontiac Catalina. It is clear that defendant's responses to questions, some by his own counsel and some by the prosecutor, spread intermittently over some thirty pages of transcript, lacked the coherence and continuity that would have been possible in a straightforward recitation of his story. It is equally clear that defendant's explanation of his possession of the stolen automobile was a critical element in his defense. The government had proved that the 1968 Catalina and the 1971 GTO had been...
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...was irrelevant, it was not offered to prove the truth of the matter asserted and therefore was not hearsay. See United States v. Carter, 491 F.2d 625, 628 (5th Cir. 1974). Bobo also argues that the statement should have been excluded under Fed.R.Evid. 404(b) because it indicated that he had......
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