US v. Darry Wayne Hanna, No. 07-4629 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4629 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRY WAYNE HANNA, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-00828-TLW) Argued: September 25, 2009 Decided: December 2, 2009 Before WILKINSON and DUNCAN, Circuit Judges, and Damon J. KEITH, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. Affirmed by unpublished opinion. Senior Judge Keith wrote the opinion, in which Judge Wilkinson and Judge Duncan joined. ARGUED: Cameron Bruce Littlejohn, Jr., Columbia, South Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: W. Walter Wilkins, III, United States Attorney, Columbia, South Carolina, Rose Mary Parham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 KEITH, Senior Circuit Judge: After a jury trial, Appellant Darry Wayne Hanna ( Darry ) was convicted of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349; 19 counts of mail fraud, in violation of 18 U.S.C. § 1341; and two counts of wire fraud, in violation of 18 U.S.C. § 1343. The district court sentenced him to 440 years of imprisonment. He now appeals his conviction on grounds that the district court erred: extrajudicial and (2) in statements admitting a of decedent letter decedent Davy Hanna ( Davy ). (1) in admitting the Teresa written by Hanna ( Teresa ); Hanna s brother, For the reasons that follow, we affirm the district court s evidentiary findings. I. This case arises from the murder of Teresa Hanna, and fraudulent attempts to collect on her life insurance policies after her death. Hanna. Teresa was married to Darry s brother, Davy In the early 2000s, serious discord arose between Davy and Teresa Hanna as a result of their marital problems. Both Davy and Teresa made statements to this effect on numerous occasions, and Teresa in particular had informed friends and acquaintances of her fear that Davy was trying to kill her. Teresa also told her friends that she thought, when she had fallen off of the side of a boat a few days earlier, Davy would 3 not have rescued her from another boat nearby. the water if there had not been On another occasion, she told a friend that Davy had once said that if he ever wanted to get rid of her, all it would take was a six pack of beer. In the early morning of August 15, 2003 Teresa s dead body was discovered lying in her driveway. Teresa had tragically been shot five times with a .22 caliber rifle and had been killed. Ronnie Hanna, Davy and Darry Teresa s body and called 911. Hannah s father, discovered Shortly thereafter, paramedics and state criminal investigators arrived at the scene. When Davy arrived, he immediately began to blame the murder on Tom Redmond, Teresa s employer. In August and September 2003, Davy attempted to collect on Teresa s multiple life insurance policies using the U.S. Postal Service. The insurance companies replied to Davy, and on September 26 and October 9, Davy called Reliance and Provident, two of the claims. loan on insurance companies, regarding the status of his In September 2003, Carolina Credit Union paid off the Davy s truck from the proceeds of Teresa s life insurance policy. On October 30, 2003, Davy and his brother Darry were arrested 2003, and while charged both with Davy and Teresa s Darry murder. were in On jail, November Davy 22, called Darry s girlfriend and told her that he would deliver a letter 4 to Darry in a box of soap. The next day, a jailer seized the box of soap and Davy s letter. In the letter, entitled Our Way Out, Davy indicated that he was going to commit suicide and urged Darry to do the same. should write letters Davy also wrote that each of them exculpating the Redmond of having murdered Teresa. other and accusing Tom On October 20, 2004, Darry and Davy were formally charged with the murder of Teresa Hanna. In August 2005, they were acquitted in state court. On August 9, 2006, Darry and Davy were indicted on nineteen federal counts of mail fraud, in violation of 18 U.S.C. § 1341; two counts of federal wire fraud, in violation of 18 U.S.C. § 1343; and one federal count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349. These counts charged Darry with participating in the murder of Teresa Hanna in order to recover proceeds from her life insurance policies. Davy committed suicide on August 26, 2006, after subsequent detention on federal mail and wire fraud charges. his In the fall of 2006, while incarcerated on the same charges as his brother, Darry made admissions to several of his fellow inmates. Darry stated that he had agreed to help Davy murder Teresa for thirty percent of the insurance proceeds, and Darry also complained that Davy should have exculpated Darry in a letter shortly before committing suicide. 5 On February 23, 2007, following a jury trial in the United States District Court for the District of South Carolina, Darry was convicted on all counts. He was sentenced to a total of 440 years imprisonment on May 31, 2007. This appeal followed. II. This Court reviews a district court s admissions of an extrajudicial statement under the abuse of discretion standard. See U.S. v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009). Also, [U]nder the abuse of discretion standard, this Court may not substitute its judgment for that of the district court; rather, [it] must determine whether the district court s exercise of discretion, considering the law and the facts, was arbitrary or capricious. Moreover, U.S. v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). this evidentiary Court rulings has are held entitled that to a district substantial court s deference, because a district court is much closer than a court of appeals U.S. v. Russell, 971 F.2d 1098, to the pulse of the trial. 1104 (4th Cir. 1992). If the district court abuses its discretion when making an evidentiary finding, this Court must determine whether the error was harmless. error is Fed. R. Crim. P. 52(a). found, [W]e need only be Under this rule, if any able to say with fair assurance, after pondering all that happened without stripping 6 the erroneous action from the whole, that the judgment was not substantially swayed by the error. U.S. v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)(citing U.S. v. Nyman, 649 F.2d 208, 211 (4th Cir. 1980)). III. It is undisputed that the district court erred in admitting Teresa s extrajudicial statements under wrongdoing exception to the hearsay rule. 804(b)(6). the forfeiture-by- See Fed. R. Evid. Rule 804(b)(6) admits a statement if it is offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Id. In Giles v. California, 128 S. Ct. 2678 (2008), decided after the district court s decision in this case, the Supreme Court clarified that the forfeiture-bywrongdoing exception applies only when a defendant engages in wrongdoing intended to make a potential declarant unavailable as a witness. Id. at 2685. In other words, it is not enough, for example, that a defendant murdered a victim with the effect of preventing her testimony; rather, the defendant must have murdered the victim with the intent of preventing her testimony. Id. In this case, it is undisputed that Darry allegedly killed Teresa for the insurance proceeds and not with the purpose of making her unavailable to testify. 7 Accordingly, the contested statements cannot be admitted under the forfeiture-by-wrongdoing exception. However, this Court follows the settled rule that in reviewing the decision of a lower court, it must be affirmed if the result is correct although the lower court relied upon a S.E.C. v. Chenery, 318 wrong ground or gave a wrong reason. U.S. 80, 88 (1943) (citing Helvering v. Gowran, 302 U.S. 238, 245 (1937)); U.S. v. Dunnock, 295 F.3d 431 (4th Cir. 2002). Teresa s stated fear that Davy was trying to kill her, and her statements relating to the dismay she felt stemming from the negative tone of their marriage, were admissible on grounds. other Because of this, no reversible error exists here. Appellant argues that Teresa s statements were barred under the Confrontation Clause of the United States Constitution. However, the Supreme Court has ruled that hearsay is not barred by the Confrontation Clause when the declarant fails to bear testimony. the Crawford, makes a remarks Crawford v. Washington, 541 U.S. 36, 51 (2004). Supreme casual to testimony her under remark Court to friends the an and acknowledged that acquaintance, acquaintances, Confrontation Clause. a person such as In who Teresa s does not bear Id. Crawford s definition of testimony was affirmed in Davis v. Washington, and most recently in Giles, which held that statements to friends and neighbors are not testimonial 8 under the Confrontation Clause. Giles, 128 S. Ct. at 2693; Davis v. Washington, 547 U.S. 813 (2006). Circuit. This definition has also been upheld in this See U.S. v. Udeozor, 515 F.3d 260, 268-270 (4th Cir. 2008)(citing and adhering to Davis and Crawford s definition of testimony). Moreover, Teresa s most probative statements are admissible under the state of mind exception to the hearsay rule. See Fed. R. Evid. 803(3). This rule admits a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health). . . Id. While not all of Teresa s statements would be admissible under this evidentiary rule, Teresa s most probative statements to her friends were expressions of the general fear and distress she felt at the time as a result of her relationship with Davy. For example, a friend testified that Teresa was depressed and visibly upset during lunch one day soon before she was killed. This same friend also testified of Teresa that, during this same lunch, she was crying, and she was shaking. acting. She was just very scared These statements would have been admissible under Rule 803(3). Teresa s statements regarding the boating accident, while not admissible under Rule 803(3), appear to have been rendered harmless by the fact that Aftene 9 Roberts, one of Teresa s friends, corroborated her firsthand own Teresa s experience statements of the separately accident. based However, on the statement in which Teresa told her friend about Davy s six pack of beer comment was admitted erroneously, and does not appear to have been properly admissible under the state of mind exception or on any other grounds. Whether admission of this statement was harmless error turns on a larger analysis of the case as a whole. Under the Federal Rules, Any error, defect, irregularity, or variance that disregarded. does not affect substantial Fed. R. Crim. P. 52(a). rights must be When applying this non- constitutional harmless error test, this Court has held that [e]vidence erroneously admitted will be deemed harmless if a reviewing court pondering all is able that to happened say, with without fair assurance, stripping the after erroneous action from the whole, that the judgment was not substantially swayed by the error. U.S. v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008) (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Ultimately, the government submitted all of Teresa s statements, including her recount of Davy s six pack of beer statement, to establish the existence of marital discord between Teresa and Davy. This would then serve to help establish the existence of a motive for Davy to kill his wife. 10 But in this case, the government had already accumulated a great deal of evidence implicating insurance proceeds, subsequent guilty Davy s as motive well as conscience. to kill evidence This Teresa for the pointing to his evidence includes Davy s infidelity, his false statement that he did not have marital problems, his false statements to the police that he did not have any life insurance on Teresa, his failure to mention that he had a second .22 rifle, and the fact that recently fired .22 rifle casings that matched those found near Teresa s body were found behind a shed in Davy s yard, and even Davy s subsequent suicide. Based on this great accumulation of evidence, and in light of the deferential abuse of discretion standard with which we examine likelihood evidentiary that Teresa s admissions most of probative this type, statements and the would be admissible on other grounds, we can say, with fair assurance, that the jury s judgment was not substantially swayed by the admission of Teresa s statements. The error that resulted in the admission of these statements was harmless, and no abuse of discretion exists here. IV. Appellant also argues that the court erred in admitting statements from Davy s Our Way Out letter as co-conspirator s statements made in furtherance of the conspiracy. 11 See U.S. v. Neal, 78 F.3d 901, 905 (4th Cir. 1996). Appellant argues that the conspiracy that he was charged with was effectively snuffed out by the arrest of the defendants on the murder charge on October 30, 2003. He goes on to cite the Fifth Circuit s observation that a defendant s participation in a conspiracy normally ends when that person is arrested for his role in the conspiracy. U.S. v. Dunn, 775 F.2d 604, 607 (5th Cir. 1985). Under the defendant s theory, when Davy composed Our Way Out on November 21, 2003, the conspiracy no longer existed, so Rule 801(d)(2)(E) could not make the letter admissible. Appellee argues that the evidence is relevant non-hearsay because it was not admitted for the truth of the matter asserted and was relevant to show the existence of a conspiracy between the two men in 2003. Appellee does not, however, argue that the statements contained in the letter are admissible as statements of a co-conspirator. Upon further review, the record shows that the District Court admitted the statements not as statements of a co-conspirator, but on other grounds as explained below. A statement is nonhearsay if it is offered against the defendant as a statement by a co-conspirator during the course of and in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E). indicate Here, the record does not that the District Court found that any of the statements were admissible under Rule 801(d)(2)(E). The 12 court stated that, although concealment might have been part of the conspiracy, statements in the letter would not further the conspiracy because the goals of the conspiracy could not be achieved if the doublesuicide proposed by the letter occurred. (J.A. 1313-1314.) The court later explained that it redacted certain statements from the letter because those statements are not co-conspirator s statements, or if they are co-conspirator s statements during the conspiracy, they are not in furtherance of the conspiracy, and[,] therefore, they are hearsay and will not be admitted. Id. at 1316. A statement by a co-conspirator is made in furtherance of a conspiracy if it was intended to promote the conspiracy s objectives, whether or not it actually has that effect. 2006). United States v. Smith, 441 F.3d 254, 262 (4th Cir. As the District Court noted, under the facts before us, Davy and Darry s goal of obtaining the insurance proceeds would have been neither of rendered them moot would by have the been proposed double-suicide, available to receive as the insurance proceeds. However, the court found that the unredacted statements in the letter were admissible, not for their truth, but rather as evidence of the conspiracy. (J.A. at 1314.) It also found that the statements were admissible to show Davy s state of mind. Id. 13 The statements contained in the letter fit within the confines of Federal Rule of Evidence 803(3), which states that [a] statement of the declarant s then existing state of mind, emotion, sensation, or physical condition [such] as intent, plan, motive, design, mental feeling, pain, and bodily health is not excludable as hearsay. Fed. R. Evid. 803(3). In this case, the letter shows that Davy had a plan for both he and Darry to commit suicide and for them both to frame Redmond for the crime by authoring corresponding suicide notes. Such statements show Davy s apparent mental feeling that the brothers were in the same situation with regard to the crime and that they therefore evidence is had reason relevant to to react show the in the same brothers way. This conspiratorial relationship regarding the crime. This Court has found that circumstantial evidence of the existence of a relationship is particularly valuable where the crime alleged is a conspiracy. In United States v. Burgos, the court very explained that by its nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence of [] an agreement. United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996). Therefore, a conspiracy generally is proved by circumstantial evidence and the context in which the circumstantial evidence is adduced. Id. The Burgos court further explained that [c]ircumstantial evidence 14 tending to prove relationship a with conspiracy other may members consist of the of a defendant s conspiracy. Id. (citing United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)). Here, previous Davy s existence of statements the are relevant conspiracy based on to show the the apparent nature of the relationship between the brothers as it pertained to the crime. Furthermore, the introduction of the statements did not violate Darry s rights under the confrontation clause because the statements serve the prov[ing] were primary past prosecution. not testimonial. purpose events . . potentially . Testimonial [of] relevant statements establish[ing] to later or criminal Davis v. Washington, 547 U.S. 813, 822 (2006). The statements here were not testimonial because they did not concern past events. Rather, they concerned plans for future action to be taken by the declarant and his co-defendant. The Eighth Circuit case of United States v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008), is illustrative on this issue. There, the appellant s co-defendant testified at trial that a third codefendant criminal asked her activities to and fabricate to keep defendants, including the appellant. a story it regarding between all Id. at 662. the their co- The court found that the statements were not testimonial because they were not statement[s] of fact, but a proposal of a future course of 15 action . . defendant. . uttered Id. not to any official, but to a co- That rationale applies in this case with equal force. Accordingly, the statements contained in the Our Way Out letter were admissible to show Davy s state of mind, relevant to the relationship Furthermore, any between error the in brothers, admitting and the not testimonial. statements would be harmless in light of the circumstantial evidence against Darry and Darry s statements to several of his prison inmates regarding the existence of the conspiracy. It is well established that a presumption of correctness is attached to the trial judge s evidentiary findings in a jury trial such as this, and the the likelihood that the appellate court will rely on the presumption tends to increase when trial judges have lived with the controversy instead of just a few hours. for weeks or months Bose Corp v. Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984). The district court heard extensive argument on the issue of the admission of this letter it occupied transcript. nearly (J.A. 150 pages 79A-79TT, of discussion 838-873, in 1270-1302, the trial 1306-1328.) The proper and thorough consideration of this issue included an extensive discussion of both the facts and the law. The decision to admit this evidence was not an abuse of discretion. 16 V. For the aforementioned reasons, we affirm the district court s evidentiary findings and affirm Darry s conviction. AFFIRMED 17

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