George Tolbert v. Arnold R. Jago, Supt. ( 1979 )

PER CURIAM.

Petitioner Tolbert appeals from a judgment denying him habeas corpus relief after he had been found guilty of murder and sentenced to a term of 15 years to life imprisonment. His contention on this appeal is that the District Court erred in failing to find a federal constitutional violation in the fact that the state trial court at his murder trial allowed the state to call a witness, one Jordan, who had previously given testimony before the Grand Jury, and when Jordan denied any memory pertaining to the murder or the Grand Jury proceeding, allowed the prosecutor to “refresh his memory” by reading him portions of the Grand Jury transcript. The portions of the Grand Jury transcript thus recited constituted very vivid sworn evidence that appellant had shot decedent six times in front of a bar in downtown Cincinnati, and in the presence of witness Jordan. The reading of these portions of the Grand Jury transcript did not occasion Jordan’s “memory” to respond at all at the trial. To every pertinent question he continued to answer that he did not remember. At the conclusion of the prosecutor’s direct examination of this witness, defense counsel was offered the opportunity to cross-examine Jordan and responded, “No questions.”

While the District Judge who heard the federal habeas corpus petition recognized that this procedure might have violated state rules of evidence, he held that the procedure was permissible under United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), and further relied upon the opinion for the court in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), wherein Justice White said:

Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.

Id. at 158, 90 S.Ct. at 1935.

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[Rather], the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.

Id. at 159, 90 S.Ct. at 1935.

The District Judge also noted that the trial judge had instructed the jury twice concerning the fact that the Grand Jury testimony could be considered by them only as being presented to refresh the memory or recollection of witness Jordan:

Ladies and gentlemen of the jury: The procedure inaugurated by the prosecutor in this particular instance is designed primarily to help this gentleman refresh his recollection as to specific times, places and events. That and that alone is the purpose of this examination. This, in and of itself, is not evidence that anybody died or anybody was shot but merely for the purpose of refreshing the recollection of this witness as to certain events, times, places (Tr. 175). (Emphasis added.)

During the course of their deliberations, the jury made the following request:

Can we consider the testimony given by Virgil Jordan, [the eyewitness] which was read by the Prosecutor, as evidence, and if so can it be reread to the jury (Tr. 358)?

In response, the court specifically instructed the jury as follows:

Ladies and gentlemen of the jury: In response to your inquiry, the purported testimony given by Virgil Jordan and which was read by the prosecuting attorney may be used only for the purpose of refreshing the memory or recollection of Virgil Jordan and may not be considered by you for any other purpose whatsoever (Tr. 358).

(Emphasis added.)

The record at the state court trial indicates that Jordan had been threatened and, indeed, shot in the head inbetween the murder with which Tolbert was charged and the date of his testimony at the trial. The trial court judge had ample reason to doubt Jordan’s lapse of memory and doubtless was motivated, as was the prosecutor, by that fact in the presentation and admission of the Grand Jury evidence.

Our review of this case does not suggest that appellant has established violation of his federal constitutional right to either confrontation or cross-examination. The witness concerned was presented at trial and the opportunity for cross-examination was provided. Appellant’s trial counsel at the conclusion of the prosecutor’s examination had every reason to avoid cross-examining a witness whose answers could only hurt his client.

On appeal counsel for appellant argued that appellant had been denied due process of law by the fact that prior statements had been used by the prosecution to buttress its proofs of murder. We note, however, that Federal Rule of Evidence 804 seems to authorize the trial court to admit former testimony where the declarant is unavailable because of a “claim of lack of memory.”

Applicable to our view of this appeal is the comment upon a similar problem in United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978):

Since we have canvassed this scene in West,¹ we need not repeat it here. It is enough to recite that sworn grand jury testimony may be admitted under Rule 804(b)(5) when there are substantial guarantees of trustworthiness equivalent to those which warrant recognized exceptions to the hearsay rule. The admission of such sworn testimony is not a violation of the Confrontation Clause of the Constitution if it bears sufficient guarantees of reliability and the circumstances contain a sufficient basis upon which the jury may assess its trustworthiness. The distinction is illustrated by the strong indicators of reliability found in West and the absence of such indicators in Gonzalez. [United States v. Gonzalez, 5th Cir., 559 F.2d 1271]. See also U. S. v. Rogers, 549 F.2d 490 (8th Cir. 1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977).

Here there are strong indicators of reliability, and the jury had an ample basis upon which to determine the trustworthiness of the testimony.

Id. at 1144.

This conviction does not depend solely upon the cross-examination of Jordan, the eyewitness with the incredibly fallible memory. There is, however, no doubt in our minds that the specific and positive statement identifying appellant as the murderer, made by Jordan before the grand jury, could have had an impact upon the trial court jury, in spite of the judge’s instructions to ignore them.

Under these circumstances, we note these factors as the underpinning for our affirmance of appellant’s conviction.

1) Jordan was called as a witness by the government and was available to the defense for full cross-examination. See California v. Green, supra. The defense refused this opportunity.

2) There was strong evidence of threats which could serve to explain Jordan’s “loss of memory.”

3) The trial jury had an ample basis for determining the trustworthiness of the grand jury testimony. See United States v. West, supra.

Under these circumstances and for the additional reasons set forth in the opinion of the District Judge, the judgment of the District Court is affirmed.

1 . United States v. West, 574 F.2d 1131 (4th Cir. 1978).

1 . The prosecutor repeated before the jury the lengthy interrogation of Jordan which had taken place before the jury. After repeating each question and answer, the prosecutor asked “Were you asked that question, and did you give that answer?”. To each such query, Jordan answered, “I don’t remember.’-’ In this manner it was brought out that Jordan, the only eyewitness, had testified that Tolbert met the decedent, Bernard Jones, in a bar, tapped him on the back and asked him, “Come outside for a minute.” Once outside Tolbert turned and shot Jones six times. The grand jury testimony also described Jordan’s flight to avoid testifying, and his fear for his life, after he had been “shot at a couple times.” Jordan’s grand jury testimony read to the jury also disavowed an exculpatory statement he had given Tolbert’s attorney.