United States v. Payne

• Decision Date: 08 February 1974
• Docket Number: 73-1200 and 73-1201.,No. 73-1199,73-1199
• Citation: 492 F.2d 449
• Parties: UNITED STATES of America, Appellee, v. Clifford E. PAYNE, Appellant. UNITED STATES of America, Appellee, v. Roland PAYNE, Appellant. UNITED STATES of America, Appellee, v. Hubert PAYNE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

492 F.2d 449 (1974)

UNITED STATES of America, Appellee, v. Clifford E. PAYNE, Appellant.

UNITED STATES of America, Appellee, v. Roland PAYNE, Appellant.

UNITED STATES of America, Appellee, v. Hubert PAYNE, Appellant.

Nos. 73-1199, 73-1200 and 73-1201.

United States Court of Appeals, Fourth Circuit.

Argued August 16, 1973.

Decided February 8, 1974.

C. Thomas Seay, Welch, W. Va. (Court-appointed counsel), for appellant in No. 73-1199.

Robert W. Hensley, Bluefield, W. Va. (Court-appointed counsel), for appellant in No. 73-1200.

Mary M. Dunn, Huntington, W. Va. (Court-appointed counsel), for appellant in No. 73-1201.

Robert B. King, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief), for appellee in Nos. 73-1199, 73-1200 and 73-1201.

Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Clifford Payne, Roland Payne and Hubert Payne were found guilty of conspiracy to violate 18 U.S.C.A. § 472 by obtaining, possessing and passing counterfeit $10 Federal Reserve Notes. Each was sentenced to imprisonment. Three other co-defendants, including their brother Burrell, pleaded guilty to the same indictment. Clifford, Roland and Hubert attack the validity of their convictions on the ground that the district court erroneously and unconstitutionally admitted into evidence a written, unsigned statement of Burrell implicating them. Before the statement was admitted, Burrell was produced as a witness and testified that he neither remembered the events described in the statement nor the fact of making the statement. Hubert also attacks his conviction on the additional ground that a money order, on which "Hubert Payne" was designated in handwriting as the sender, was improperly admitted into evidence because there was no proof that the handwriting was his.

We see no merit in either contention, and we affirm.

I.

At the trial of Clifford, Roland and Hubert Payne, Burrell Payne, who had previously pleaded guilty, was called as a witness for the government. When interrogated, he remembered and recognized his brothers. He claimed no recollection of having pleaded guilty, but he did not dispute that fact. He claimed no recollection of having talked to any "federal men" at his home in Wytheville, Virginia, on July 11, 1972, and he denied any recollection of having passed any counterfeit money. Again, however, he did not dispute either fact, but said simply that he had no recollection. A writing, later identified as an unsigned partial statement taken by a member of the Secret Service, was exhibited to him, but it failed to refresh his recollection either of the events set forth in the statement, or of the fact that the interview had taken place. Burrell made reference to the fact that he had been a patient at a state mental hospital and was still an out-patient and on medication. He also mentioned an accident when he fell down some steps while he was holding an eighty pound power tool and suffered some temporary paralysis and loss of memory thereafter.¹

Special Agent, Peter M. Donald, Jr., of the Secret Service, was then called as a witness. Agent Donald said that he and two other Secret Service agents talked to Burrell at Burrell's home in Wytheville, Virginia, on January 11, 1972. The interview began in an automobile in front of the residence and then adjourned inside to the kitchen for the purpose of taking a written statement from Burrell. There, Agent Donald interrogated Burrell and wrote his answers. In the words of Agent Donald "he Burrell was providing the facts and I was writing them down on a piece of paper." Agent Donald testified that as the interview in the kitchen progressed, Burrell complained of dizziness, headache and loss of memory, and by mutual agreement the taking of the statement was terminated. Agent Donald was of the view that, until Burrell terminated the interview, his memory then was far better than it appeared in court; Burrell appeared "perfectly normal" and related instances which he said had occurred two or three months earlier. Burrell did not sign the statement; but Agent Donald testified that his transcription of Burrell's statement was accurate to the point that Burrell terminated the interview, and Agent Donald's verification is not challenged on appeal.

Over defendant's objection, the district court admitted the statement, and it was exhibited to the jury. It recorded that Burrell had been advised of his constitutional right not to make a statement, that anything he said could be used against him, and that he concluded to make a statement of his own free will and accord without promise of immunity. It set forth that sometime in November, 1971, he obtained from his brother Hubert thirty-five counterfeit $10 bills, apparently as a gift, and he passed them, with the help of Richard Stanley, a co-defendant, at various places in western Virginia and southern West Virginia. Nine of the notes were passed by Stanley to purchase a money order at the Piggly-Wiggly store in Grundy, Virginia, and the money order was given to Hubert. Burrell obtained additional counterfeit $10 bills from Hubert on a second occasion, and this time paid him $20 for each $100 of counterfeits. The statement also set forth that "I believe my brothers Roland, Clifton and Chester also had some counterfeits." The statement concluded with the inscription that it was incomplete and unsigned because "subject complains of lapses of memory and dizzy spells," and there followed Special Agent Donald's signature.

The evidence concerning the money order, which is the subject of Hubert's second ground of appeal, was that it was in the amount of $84.63 and was sold at a Piggly-Wiggly store in Grundy, Virginia, to Burrell and an unidentified man for nine counterfeit $10 bills, and that in the printed block for the name of the sender, the name of "Hubert Payne" had been inserted in handwriting. There was no evidence who wrote in the name, but there was evidence that the money order had been cashed in Columbus, Ohio, where Hubert Payne was shown to have lived.

II.

As we see the issue of the admissibility of the statement, it involves the consideration of two aspects of the law—the general law of evidence and the effect of the Confrontation Clause guarantee. We proceed to these considerations seriatim:

A. As a rule of evidence, there are opposing views as to whether recorded past recollection may be admitted into evidence as a permissible exception to the rule excluding hearsay evidence. The authorities are collected in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), where it is said that a majority of the courts hold that such recorded past recollection may not be offered "to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial," 399 U.S. at 154, 90 S.Ct. at 1933. The survey and analysis of the authorities contained in Green also discloses that "the minority view adopted in some jurisdictions and supported by most legal commentators and by recent proposals to codify the law of evidence would permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial." 399 U.S. at 155, 90 S.Ct. at 1933.

Some of the members of the panel, if faced with the necessity of choosing between majority and minority views in the instant case, would prefer to cast their lot with the minority view and hold that Burrell's statement was admissible, as recorded past recollection, to prove the truth of its contents. They would be strongly influenced by the potential fostering of perjury, in a case like the instant one where the accuracy of the prior recorded recollection was impressively demonstrated by the testimony of the agent, by the adoption of a rule which would encourage Burrell to feign a failure of recollection, on his own or at the instance of his brothers. But it is unnecessary to make the choice between majority and minority rules in this case. This is so because, even in those jurisdictions following the majority view (See e. g., United States v. Cunningham, 446 F.2d 194 (2 Cir. 1971); United States v. Pacelli, 470 F.2d 67 (2 Cir. 1972), cert. den. 93 U.S. 1501, 93 S. Ct. 1501, 36 L.Ed.2d 178 (March 19, 1973)), prior inconsistent statements of a witness available for cross-examination may be received as affirmative proof when they were made at a former trial, or before a grand jury. United States v. Mingoia, 424 F.2d 710, 713 (2 Cir. 1970); United States v. Insana, 423 F.2d 1165, 1170 (2 Cir.), cert. den. 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). The rationale of these exceptions to the majority rule is that the fact of an oath or possible cross-examination provide sufficient assurances of reliability that the statement ought to be admitted as substantive evidence of the facts it contains.

Following submission of the instant appeals, we required Burrell's arraignment to be transcribed and submitted to us. Our study of it persuades us that his statement was sufficiently tested as to reliability that it, too, ought to be held admissible to prove the truth of its contents, even though technically it had not been sworn to, or he cross-examined.

On June 12, 1972, about six months prior to the retrial of Clifford, Roland and Hubert at which Burrell testified,² Burrell came on for arraignment. Initially, he entered a plea of not guilty; his motion to sever his case from that of his brothers was granted; and his case was set for trial on July 24. After the court's luncheon recess, Burrell communicated to the court his desire to change his plea to one of guilty. In full compliance with Rule 11, F.R.Cr.P., Burrell was interrogated to demonstrate the voluntary nature of his tender of a plea of guilty and his understanding of the nature...