UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
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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: (1) in admitting the
extrajudicial statements of decedent Teresa Hanna (“Teresa”);
and (2) in admitting a letter written by Hanna’s brother,
decedent Davy Hanna (“Davy”). 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. Teresa was married to Darry’s brother, Davy
Hanna. 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
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not have rescued her from the water if there had not been
another boat nearby. 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 Hannah’s father, discovered
Teresa’s body and called 911. 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 insurance companies, regarding the status of his
claims. In September 2003, Carolina Credit Union paid off the
loan on Davy’s truck from the proceeds of Teresa’s life
insurance policy.
On October 30, 2003, Davy and his brother Darry were
arrested and charged with Teresa’s murder. On November 22,
2003, while both Davy and Darry were in jail, Davy called
Darry’s girlfriend and told her that he would deliver a letter
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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. Davy also wrote that each of them
should write letters exculpating the other and accusing Tom
Redmond of having murdered Teresa. 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 his
subsequent detention on federal mail and wire fraud charges. 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.
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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.” U.S. v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Moreover, this Court has held that “a district court’s
evidentiary rulings are entitled to substantial deference,
because a district court is much closer than a court of appeals
to the ‘pulse of the trial.’” U.S. v. Russell, 971 F.2d 1098,
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. Fed. R. Crim. P. 52(a). Under this rule, if any
error is found, “[W]e need only be 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 the forfeiture-by-
wrongdoing exception to the hearsay rule. See Fed. R. Evid.
804(b)(6). 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-by-
wrongdoing 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. Accordingly, the contested
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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
wrong ground or gave a wrong reason.’” S.E.C. v. Chenery, 318
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 other
grounds. 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.” Crawford v. Washington, 541 U.S. 36, 51 (2004). In
Crawford, the Supreme Court acknowledged that a “person who
makes a casual remark to an acquaintance,” such as Teresa’s
remarks to her friends and acquaintances, does not “bear
testimony” under the Confrontation Clause. 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 under the Confrontation
8
Clause. Giles, 128 S. Ct. at 2693; Davis v. Washington, 547
U.S. 813 (2006). This definition has also been upheld in this
Circuit. 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. She was just very scared
acting.” 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 Roberts, one of Teresa’s
9
friends, corroborated Teresa’s statements separately based on
her own firsthand experience of the accident. However, 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 does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a). 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 is able to ‘say, with fair assurance, after
pondering all that happened without stripping the 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. But in this
10
case, the government had already accumulated a great deal of
evidence implicating Davy’s motive to kill Teresa for the
insurance proceeds, as well as evidence pointing to his
subsequent guilty conscience. This 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 evidentiary admissions of this type, and the
likelihood that Teresa’s most probative statements 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. See U.S. v.
11
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). Here, the record does not indicate that the
District Court found that any of the statements were admissible
under Rule 801(d)(2)(E). The court stated that, although
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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 double-
suicide 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.” United States v. Smith, 441 F.3d 254, 262 (4th Cir.
2006). As the District Court noted, under the facts before us,
Davy and Darry’s goal of obtaining the insurance proceeds would
have been rendered moot by the proposed double-suicide, as
neither of them would have been available to receive 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.
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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 had reason to react in the same way. This
evidence is relevant to show the brothers’ 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 explained that “by its very 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 a conspiracy may consist of a defendant’s
‘relationship with other members of the conspiracy.’” Id.
(citing United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir.
1984)). Here, Davy’s statements are relevant to show the
previous existence of the conspiracy based on 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 were not testimonial. Testimonial statements
serve the “primary purpose . . . [of] establish[ing] or
prov[ing] past events potentially relevant to later criminal
prosecution.” 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 co-
defendant asked her to fabricate a story regarding their
criminal activities and to “keep it” between all the co-
defendants, including the appellant. Id. at 662. 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 . . . uttered not to any official, but to a co-
defendant.” Id. 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 between the brothers, and not testimonial.
Furthermore, any error in admitting the 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 for weeks or months
instead of just a few hours.” 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 nearly 150 pages of discussion in the trial
transcript. (J.A. 79A-79TT, 838-873, 1270-1302, 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.
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V.
For the aforementioned reasons, we affirm the district
court’s evidentiary findings and affirm Darry’s conviction.
AFFIRMED
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