United States v. Larry Woods, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY DALE WOODS, JR., a/k/a Toby,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:98-cr-00164-RLV-6)
Argued: January 29, 2014 Decided: March 24, 2014
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Matthew Collin Joseph, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Dale Woods, Jr. appeals from the district court’s
judgment revoking his term of supervised release and sentencing
him to serve a term of 26 months’ imprisonment. Woods argues
that the district court erred in admitting hearsay evidence at
the revocation hearing without engaging in the balancing test
required by Rule 32.1 of the Federal Rules of Criminal Procedure
(Rule 32.1) and our decision in United States v. Doswell, 670
F.3d 526 (4th Cir. 2012). We conclude that the district court’s
admission of this evidence was error and, because the error was
not harmless, we vacate the court’s judgment and remand for
further proceedings.
I.
In 1999, Woods entered a guilty plea to charges that he
conspired to possess with intent to distribute quantities of
cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.
§§ 846 and 841(a)(1). The district court sentenced him to serve
a term of 292 months in prison, followed by a ten-year period of
supervised release. Among other provisions, the conditions of
supervised release required that Woods “follow the instructions
of the [p]robation [o]fficer” and not commit any federal, state,
or local crimes.
2
Woods began his term of supervised release in March 2009
after serving his term of imprisonment. In August 2012,
however, his probation officer filed a petition seeking
revocation of Woods’ supervised release (the petition) based on
two incidents described below.
In the first incident (the Crisp incident), Woods allegedly
placed a telephone call to an ex-girlfriend, Alicia Crisp, after
his probation officer directed that Woods have no contact with
her. The government alleged that Woods violated the supervised
release condition requiring him to follow the probation
officer’s instructions.
In the second incident (the Williams incident), Woods
allegedly assaulted another ex-girlfriend, Sarah Williams.
During that episode, Woods purportedly committed the offenses of
assault, trespass, larceny, and injury to Williams’ property.
Woods’ alleged conduct resulted in warrants being issued for his
arrest. The government contended that based on these charges,
Woods violated the supervised release condition that he not
commit any crimes during his release period.
The district court conducted a supervised release
revocation hearing. Neither Crisp nor Williams attended, and
subpoenas had not been issued to secure their presence.
Instead, the government relied on the testimony of law
3
enforcement officers who recounted certain statements made by
the two women concerning Woods’ conduct.
With regard to the Crisp incident, Woods sought to exclude
as inadmissible hearsay the testimony of United States Probation
Officer Jason Kemp concerning his conversation with Crisp. The
district court overruled Woods’ objection, explaining summarily
that “[h]earsay would be admissible particularly where there are
indications of reliability.” However, the court did not make a
reliability finding at that point or at any other point during
the hearing. Kemp was permitted to testify without restriction
about Crisp’s report that Woods had placed a telephone call to
her. Kemp further stated that Crisp had given him a recording
of that telephone conversation, which the court admitted into
evidence.
Kemp also testified about his conversations with Williams.
Woods timely objected to this testimony as inadmissible hearsay,
citing this Court’s decision in Doswell concerning the limited
circumstances under which hearsay evidence may be admitted at a
supervised release revocation hearing. The district court
overruled the objection without explanation.
Kemp testified that Williams told him that Woods had
attacked her in her home in August 2012. According to Kemp,
Williams stated that Woods “slammed” her into a wall, and later
threw her onto a bed and took her car keys and cell phone.
4
The district court also heard testimony from Christopher
Craven, a law enforcement officer employed by the Sheriff’s
Office of Iredell County, North Carolina, concerning the
Williams incident. Craven had responded to Williams’ residence
the morning following the incident after Williams telephoned the
police. Over Woods’ hearsay objection, Craven was allowed to
testify about his conversation with Williams, including that
Woods attacked her and took her car keys and cell phone. During
Craven’s testimony, over Woods’ objection, the government
introduced into evidence a written statement that Williams
provided to Craven, as well as photographs taken by police
showing her injuries and the damage to her home.
After the district court admitted the above hearsay
evidence, Woods testified in his defense. Woods admitted
contacting Crisp after she placed two telephone calls to him.
However, Woods denied assaulting Williams, damaging her home, or
taking her car keys or cell phone.
After hearing this testimony, the district court held that
the government had established by a preponderance of the
evidence that Woods committed four violations of the conditions
of his supervised release. 1 The court did not make a reliability
1
The petition asserted five violations of the terms of
Woods’ supervised release, but the court dismissed the most
serious of those allegations pertaining to a felony burglary
(Continued)
5
finding concerning the hearsay evidence, but stated generally
that the violations were “supported by credible evidence.” The
court revoked Woods’ supervised release and sentenced him to a
26-month term of imprisonment, to be followed by a 34-month
period of supervised release. Woods filed a timely appeal
challenging the district court’s judgment.
II.
Woods argues that this Court should vacate the district
court’s judgment because the court impermissibly relied on
hearsay evidence in concluding that Woods committed the acts
alleged in the petition. Woods asserts that the court erred in
considering the above hearsay evidence without engaging in the
balancing test required by Rule 32.1 and our decision in
Doswell.
In response, the government contends that the district
court did not err in admitting the challenged hearsay evidence
because the district court made a reliability finding, which is
supported by the record. Alternatively, the government
maintains that even if the evidence was erroneously admitted,
charge initiated in connection with the Williams incident. The
court held that the government established the other four
violations as alleged in the petition, three of which related to
Williams and one of which related to Crisp.
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such error was harmless. We disagree with the government’s
arguments.
We review for abuse of discretion the district court’s
decision to admit hearsay evidence at a supervised release
revocation hearing. Doswell, 670 F.3d at 529. As we explained
in Doswell, “[s]upervised release revocation hearings are
informal proceedings in which the rules of evidence, including
those pertaining to hearsay, need not be strictly applied.” Id.
at 530. Nevertheless, when the government seeks to revoke an
individual’s period of supervised release, the releasee has a
constitutional right “to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation).” Id. (quoting Morrissey
v. Brewer, 408 U.S. 471, 489 (1972)).
Rule 32.1 sets forth the circumstances in which hearsay
evidence may be admitted in a supervised release revocation
hearing. Under the Rule, a releasee has the right to “question
any adverse witness unless the court determines that the
interest of justice does not require the witness to appear.”
Fed. R. Crim. P. 32.1(b)(2)(C). As we observed in Doswell, the
district court is required under Rule 32.1 to apply a “balancing
test” before admitting hearsay evidence, in which the court
weighs the releasee’s “interest in the constitutionally
7
guaranteed right to confrontation against the government’s good
cause for denying it.” 670 F.3d at 530 (citation omitted).
A “critical factor” in this balancing test is the
“reliability” of the hearsay evidence. Id. at 531. When
hearsay evidence is reliable and the government has given a
satisfactory reason for not producing the adverse witness, the
hearsay evidence likely will be admissible under Rule 32.1. Id.In Doswell, we vacated a district court’s judgment because
the court admitted certain hearsay evidence necessary to the
court’s holding without making any finding of reliability or any
consideration of the balancing test required by Rule 32.1. Id.Based on the present record, we reach the same result here.
Like the record in Doswell, the record before us shows that the
district court did not make a reliability finding with respect
to the challenged hearsay evidence. 2 Further, as in Doswell, the
district court did not give any consideration to the question
whether the government had offered a satisfactory explanation
for its failure to produce Crisp and Williams at the hearing,
2
The district court’s statement that “[h]earsay would be
admissible particularly where there are indications of
reliability” does not constitute a reliability finding, because,
among other reasons, the court made that statement before the
evidence at issue was proffered. Similarly, the court’s
statement at the end of the hearing that the government’s
allegations were “supported by credible evidence” is not an
explicit reliability finding.
8
nor did the court attempt to engage in the balancing test
required by Rule 32.1.
We decline to assess for the first time on appeal the
reliability of challenged hearsay evidence, nor will we conduct
in the first instance the Rule 32.1 balancing test. As a
general matter, those tasks should be undertaken by the district
court. Cf. United States v. Rogers, 556 F.3d 1130, 1137 (10th
Cir. 2009) (stating that the “district court was in the best
position” to assess the reliability of evidence for purposes of
determining whether hearsay evidence should have been admitted);
United States v. Watson, 409 F.3d 458, 463 (D.C. Cir. 2005)
(observing that district courts are in the best position to
conduct the balancing test required by Federal Rule of Evidence
403).
We further hold that the district court’s error was not
harmless. An error is harmless if “it appears beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.” See United States v. Lovern, 293 F.3d
695, 701 (4th Cir. 2002) (citation and internal quotation marks
omitted). The government bears the burden of demonstrating
harmless error. Id.Here, with respect to both incidents, the government
heavily relied on the out-of-court statements that Crisp and
9
Williams made to law enforcement officers. Thus, the challenged
hearsay evidence was central to the government’s case.
With regard to the Crisp incident, the admission of the
hearsay statements fundamentally affected Woods’ trial strategy.
Woods may have elected not to testify if the court had excluded
Kemp’s testimony about Crisp’s statements and the recording she
gave him. That recording was admitted into evidence based on
foundation testimony from Kemp, who relied on Crisp’s hearsay
statements concerning the recording.
With regard to the Williams incident, the government
presented non-hearsay photographic evidence of Williams’
injuries and the damage to her home. However, that evidence
merely established that such injuries and damage occurred, and
did not establish the identity of Williams’ assailant. Indeed,
we observe that there is evidence in the record that Williams
was involved in a physical altercation with her mother-in-law
two or three days before the alleged episode with Woods.
We cannot accept the government’s assertion, made for the
first time on appeal, that Williams’ oral and written statements
provided to Craven were admissible under the excited utterance
and present sense impression exceptions to the hearsay rule.
The government did not offer the statements into evidence on
those bases, nor did the district court make factual findings
necessary to consideration of those hearsay exceptions. Both
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these hearsay exceptions require a factual inquiry into the
timing of the statement and the declarant’s mental state. 3 As an
appellate court, we do not make such factual findings. See
Anderson v. Bessemer City, 470 U.S. 564, 573-75 (1985); Mora v.
City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008).
In view of these considerations, we conclude that the
government has not met its burden of establishing “beyond a
reasonable doubt that the error complained of did not
contribute” to the district court’s holding that Woods violated
the terms of his supervised release. See Lovern, 293 F.3d at
701. Accordingly, the district court’s failure to apply the
balancing test required by Rule 32.1 and Doswell requires us to
vacate the court’s judgment, and to award Woods a new hearing on
the allegations that he violated the terms of his supervised
release.
3
For a statement to qualify under the excited utterance
hearsay exception, the statement must describe a “startling
event or condition, made while the declarant was under the
stress of excitement that it caused.” Fed R. Evid. 803(2); see
United States v. Jennings, 496 F.3d 344, 349 (4th Cir. 2007).
Similarly, admission of evidence under the present sense
impression hearsay exception requires that the statement
“describ[e] or explain[] an event or condition, made while or
immediately after the declarant perceived it.” Fed. R. Evid.
803(1); see United States v. Portsmouth Paving Corp., 694 F.2d
312, 323 (4th Cir. 1982). See generally United States v.
Jackson, 124 F.3d 607, 618 (4th Cir. 1997) (discussing the
excited utterance and present sense impression hearsay
exceptions).
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III.
For these reasons, we vacate the district court’s judgment
and remand the case for a new hearing on the allegations of the
petition.
VACATED AND REMANDED
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