United States v. Todd Michael Porter
986 F.2d 1014 (1993)
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Rule of Law:
A witness's prior written statement may be admitted as a past recollection recorded under Federal Rule of Evidence 803(5) if sufficient extrinsic indicia of trustworthiness exist, even if the witness does not vouch for the statement's accuracy while testifying. Furthermore, the confidential marital communications privilege is inapplicable to communications made between spouses after they have permanently separated.
Facts:
- Todd Michael Porter engaged in a criminal enterprise, exchanging explosives with Wisan ('Sam') Petros for cocaine and cash during 1988 and 1989.
- The explosives provided by Porter were used to destroy buildings and automobiles in Detroit.
- In October 1989, Porter's 17-year-old girlfriend, Kim Niswonger, provided a detailed written statement to the FBI, describing Porter's criminal activities.
- Niswonger's statement detailed an incident where Porter instructed her that if he beeped her, she was to go to his grandmother’s house, flush cocaine down the toilet, and hide approximately $30,000 in cash.
- In October 1988, Porter's wife, Julie Ann Jones, was hospitalized for a miscarriage, but Porter did not visit her.
- Following her hospital stay and Porter's absence, Jones 'moved out,' permanently separating from him.
- Approximately 10 to 12 days after their separation, Porter called Jones and confessed that he had gone to Florida with co-conspirators to purchase a kilogram of cocaine.
- Porter and Jones subsequently divorced.
Procedural Posture:
- The United States government indicted Todd Michael Porter on a 19-count indictment in a federal district court.
- At trial, the district court admitted into evidence portions of a written statement by witness Kim Niswonger under the past recollection recorded hearsay exception (FRE 803(5)).
- The trial court also allowed Porter’s ex-wife, Julie Ann Jones, to testify about a conversation that occurred after their separation, overruling a defense objection based on marital privilege.
- A jury convicted Porter on all counts, and the trial court sentenced him to 252 months in prison.
- Porter (as appellant) appealed his conviction and sentence to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Does Federal Rule of Evidence 803(5) permit the admission of a witness's prior written statement as a past recollection recorded when the witness testifies to having insufficient memory and does not vouch for the statement's accuracy, but other factors indicate its trustworthiness? And, does the confidential marital communications privilege apply to exclude testimony about communications made between spouses after they have permanently separated but before they are legally divorced?
Opinions:
Majority - Edgar, District Judge
The majority held that Niswonger's prior written statement was properly admitted under FRE 803(5). The court found sufficient indicia of trustworthiness despite Niswonger's failure to vouch for its accuracy at trial. Key factors supporting trustworthiness included: (1) Niswonger admitted making the statement; (2) it was made shortly after the events; (3) she signed each page; (4) she initialed 11 changes; (5) it was made under penalty of perjury; (6) it contained extensive, internally consistent detail; and (7) it was made when she feared reprisal. The court determined Niswonger's claimed memory loss and uncertainty were 'disingenuous' and 'evasive.' The majority emphasized that Rule 803(5) does not require the witness to vouch for accuracy if other factors establish trustworthiness. Regarding marital privilege, the court held that the confidential marital communications privilege does not apply to communications made after permanent separation, as the privilege exists to protect viable marriages, not defunct ones.
Concurring - Siler, Circuit Judge
Judge Siler concurred in affirming the conviction but disagreed with the majority's Rule 803(5) analysis. He believed the district court erred in admitting Niswonger's statement under this rule because it requires the record to 'reflect that knowledge correctly,' and Niswonger testified she was 'screwed up' on drugs and unsure if the statement was truthful. This testimony, in his view, directly contradicted the requirement that the statement accurately reflect her knowledge. However, he would affirm on alternative grounds: the district court also admitted the statement under the residual hearsay exception, FRE 803(24), and since Porter did not challenge the notice requirement for this rule on appeal, any error was waived. Thus, while disagreeing with the majority's interpretation of Rule 803(5), Judge Siler agreed the conviction should stand.
Analysis:
This case clarifies two significant evidentiary rules in the Sixth Circuit. First, it broadens the application of the past recollection recorded exception (FRE 803(5)) by allowing trial courts to rely on external indicia of trustworthiness to admit a statement, even when the witness on the stand is evasive or fails to vouch for the statement's accuracy. This strengthens the tool for prosecutors dealing with recanting or intimidated witnesses. Second, the decision formally adopts the 'permanent separation' exception to the confidential marital communications privilege, aligning the circuit with others and prioritizing the legal system's search for truth over protecting communications within a defunct marital relationship.
