United States v. Rodriguez-Berrios

573 F.3d 55 (1st Cir. 2009)

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Nature of the Case

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Facts

D was a police officer for the Commonwealth of Puerto Rico. In 1995, he married the victim, Ortiz. They had one daughter together and were then divorced in February 1999. Ortiz disappeared approximately two months later, on April 15th, 1999, while driving her car. About two weeks after her disappearance, her burned-out car was found in an area where smoke had been seen on the night she had disappeared. The car had been intentionally burned with an accelerant and the victim's body was never found. D became a suspect. D made several incriminating admissions linking him to her murder. D and two co-defendants were indicted for conspiracy to commit a carjacking resulting in death. D faced one charge for committing a carjacking resulting in death, in violation of 18 U.S.C. § 2119(3). P presented a case that described a pattern of abuse and stalking by D. Over D's objections, several prosecution witnesses recounted their own observations of his abuse, stalking, and threats as well as statements made by the victim. D presented alibi witnesses. D denied involvement in the victim's death and denied making incriminating statements. He also denied several of the incidents of abuse and stalking described by prosecution witnesses. During trial, the court excluded from evidence tape recordings of the victim talking to passengers in her vehicle and on her cellular telephone while she was driving. The recordings were made by D months before her disappearance. D placed a tape recorder under the driver's seat of the victim's car. D sought to play the recordings to the jury for the purpose of impeaching the hearsay statements of the victim, entered through government witnesses, that described D's abuse. This is the hearsay testimony that P has acknowledged was wrongly admitted. D claimed that the tapes impeached the victim's accusations of abuse not because of what she actually said on the tapes, but because of how she said it. Her tone and attitude 'corroborated the fact that she was having an affair and was not, in fact, afraid of D.' She was very calm. She's very cool. She is joking, she is laughing. She says that, well, he might kill me; go ahead. She doesn't sound afraid at all. She never says that she had been hit, or abused. In fact, it says that when that mother fucker, if he knew . . . who the ties were for, he would kill me -- but she's laughing. The court ruled that the tapes could not be used under Rule 806 to impeach the victim's allegations because she was not a 'declarant,' stating that 'the definition of declarant under the rules of evidence specifically 801, is a person who takes the witness stand.' The court later stated that the evidence was inadmissible under Rule 806 because the statements were not hearsay but rather 'exceptions to hearsay.' D was found guilty and appealed.