United States v. Jones

601 F.3d 1247 (11th Cir. 2010)

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Nature of the Case

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Facts

Buskirk was shot with a .38 caliber bullet outside his home. Detective Von Lowenfeldt led the investigation. D was identified as a prime suspect. While executing a warrant for D's arrest, for violation of his parole, the police found twelve .38 caliber rounds and four .44 caliber rounds. Von Lowenfeldt conducted a videotaped interview of sixteen-year-old Kelly Bigham. She informed the detective that she had sold a .38 revolver to D. She described how she and D drove to a nice area of town, where D shot a white man. She even directed Von Lowenfeldt to the street on which Buskirk lived and demonstrated how D got out of the car, fired at the man, and got back into the car. D was indicted on ammunition charges was convicted but prevailed on appeal. Then Gregory Seabrook who was incarcerated with D offered to provide information divulged by D about his role in the Buskirk assault and about D's subsequent arrest. P brought new charges and at a second trial, a jury convicted D on all four counts. Prior to trial, P informed D and the district court of its intent to offer the video as evidence, pursuant to Rules 804(b)(1) (former testimony) and 804(b)(3) (statement against interest). At trial, P elicited responses from Bigham that indicated she lacked 'clear and distinct recollection in [her] response to the question[s]' regarding the subject matter of her interview with Von Lowenfeldt. She could not remember that she sold D the .38 revolver 'at the end of April of 2004.' She also could not recall D making any statements about the gun. P showed Bigham the video, outside the presence of the jury. She remembered what was just said. Eventually, she could recall 'some' of the relevant events. D conceded to the video's use for the purpose of refreshing recollection. Bigham verified the contents of the video through her testimony at trial. She testified that it was easier to remember the events described in the videotape at the time of the interrogation than on the date of the trial. When the government asked whether the things said were true and accurate to the best of her knowledge, Bigham responded, 'If that was what was said then, that's what I remember then, what was just in the video.' Bigham also testified that she repeated the contents of her interview in juvenile court, and she agreed that 'the things that [she] [said] to the detective at that time [were] true and accurate to the best of [her] knowledge.' Bigham acknowledged, at a minimum, 'that's me talking' on the video. The district court permitted the jury to view the full video of Bigham's custodial interrogation as part of the government's case-in-chief. P claimed it was admissible as a past recollection recorded, pursuant to Rule 803(5). During deliberation, the jury sent the court a note, requesting a second viewing of the video. Over D's objection, the district court allowed the video to be played for the jury a second time. D argues that by admitting the video as a past recollection recorded, the district court erred in its application of the Federal Rules of Evidence.