United States of America v. Elmarries L. Harris

United States Court of Appeals
For the Eighth Circuit
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No. 23-2957
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Elmarries L. Harris,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 11, 2024
Filed: August 15, 2024
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Before COLLOTON, Chief Judge, ERICKSON and KOBES, Circuit Judges.
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COLLOTON, Chief Judge.
Elmarries Harris appeals a judgment revoking his term of supervised release.
He argues that the district court denied him the right to confront witnesses against
him at his revocation hearing. We conclude that the judgment of the district court1
is consistent with the applicable rule of criminal procedure and the requirements of
due process, so we affirm.
I.
Harris was serving a term of supervised release in 2023 after finishing a prison
sentence for a firearms offense. In January 2023, the probation office reported to the
district court that Harris committed several violations of the conditions of his release.
The most serious allegation was that Harris assaulted his wife, Erica, at an apartment
in Springfield, Missouri.
In June 2023, the court held a revocation hearing. Harris denied the
allegations, and the government presented only the violation report from the
probation office and a defense investigator’s report that Erica denied being assaulted.
Harris objected that the evidence was hearsay. The court continued the hearing for
sixty days to receive additional evidence. In the meantime, the probation office
submitted another violation report alleging that Harris consumed alcohol.
At a reconvened hearing in August, the government submitted evidence about
the alleged assault of Erica. The prosecution presented medical records of Erica’s
injury. The government served a subpoena on Erica, but she refused to appear.
1The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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A police officer testified that a friend of Erica’s named Amy Jones called 911
on January 21, 2023. Jones reported that she had just completed a video call with
Erica during which Erica had swollen eyes, was unable to speak well, and told Jones
that she had just awakened from being knocked out. Harris objected to this testimony
as hearsay.
The police officer explained that he responded to the 911 call by visiting
Erica’s residence and made contact with a neighbor named Janet Breaux. Breaux told
the officer that Erica had come to Breaux’s door, asked for help, and said that she and
her husband got into a fight. Breaux said that “he beat the hell out of her.” The
officer’s conversation with Breaux was recorded on a police officer’s body camera,
and the video was received in evidence to eliminate a second layer of hearsay. Harris
objected to the officer’s testimony about what Erica told Breaux and to the body
camera video.
The officer further testified that he located Erica at the scene and found that she
needed assistance to stand. Her entire face was swollen, and she could barely open
her eyes due to the swelling. After observing Erica’s injuries, the officer called for
emergency medical services. Before Erica was transported to the hospital, she asked
the officer to help contact her landlord to request a change of her apartment’s locks.
After Erica left in the ambulance, the officer contacted Jones by telephone.
The officer’s body camera video recorded the call, and the government played the
video at the hearing over Harris’s objection. Jones said that Erica told her that Erica’s
husband had “beat her up really bad.”
The probation officer also testified at the reconvened hearing. She explained
that two days after the incident, she made contact with Erica’s sister, Jessica
Hempstead, at Erica’s apartment. The sister told the probation officer that this
incident was not the first domestic assault that had occurred between Harris and
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Erica. The sister then telephoned Erica’s mother, Billie Newsome. The mother told
the probation officer by telephone that the January incident was not the first time that
Harris had assaulted Erica, and that the mother believed that Harris would kill Erica.
Harris objected to the probation officer’s testimony about the statements of Erica’s
sister and mother.
At the conclusion of the hearing, the district court found that Harris committed
a Grade A violation of his conditions of release by committing a domestic assault in
the second degree. The court cited images of Erica’s injuries and medical records that
were “consistent with multiple striking or assault or blunt force trauma to different
planes or angles on her face.” The court found that “some of the significant aspects
of the government’s evidence” were the police officer’s report of the 911 call by
Jones reporting that Erica had just awakened after being knocked out, the officer’s
testimony about neighbor Breaux’s account that Erica said she had been assaulted by
Harris, and the officer’s testimony that Erica’s immediate concern after the assault
was to have the locks changed at her apartment.
The court also found that Harris violated other conditions of his supervised
release: failing to answer the probation officer’s questions truthfully and to follow
her instructions, failing to notify the probation officer ten days before changing his
residence, and consuming alcohol.
The court sentenced Harris to the statutory maximum sentence of 24 months’
imprisonment with no supervised release to follow. See 18 U.S.C. § 3583(e)(3);
USSG § 7B1.4(b)(1). But for the statutory maximum, the court would have imposed
a longer term of imprisonment “because of the multitude of violations and the
seriousness of the violations.”
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II.
On appeal, Harris argues that the court’s reliance on hearsay evidence violated
Federal Rule of Criminal Procedure 32.1 and deprived him of liberty without due
process of law. Rule 32.1(b)(2)(C) explains that a defendant is entitled to “question
any adverse witness unless the court determines that the interest of justice does not
require the witness to appear.” The Confrontation Clause of the Sixth Amendment
does not apply at a revocation proceeding, but a defendant has a “limited due process
right” to confront adverse witnesses. United States v. Ray, 530 F.3d 666, 668 (8th
Cir. 2008). The court “must balance the [defendant’s] right to confront a witness
against the grounds asserted by the government for not requiring confrontation.”
United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). This balancing process
requires the court to assess the government’s explanation for why confrontation is
undesirable or impractical and to consider the reliability of the evidence that the
government offers in place of live testimony. Id. at 642-43.
[W]here the government demonstrates that the burden of producing live
testimony would be inordinate and offers in its place hearsay evidence
that is demonstrably reliable, it has made a strong showing of good
cause. Where, on the other hand, the government neither shows that
presenting live testimony would be unreasonably burdensome nor offers
hearsay evidence that bears indicia of reliability, the [defendant] is
entitled to confrontation.
Id. at 643. Other cases fall between these two poles and require a judgment under the
balancing process described in Bell.
We conclude that the district court did not err in deciding that the proceedings
comported with due process and that the interest of justice did not require Erica,
Jones, and Breaux to appear. Erica was a victim of a violent assault, and she refused
to appear while under subpoena. There is good cause for not producing a declarant
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like her where a defendant has a history of violent conduct that makes reprisal a
possibility. See United States v. Simms, 757 F.3d 728, 733 (8th Cir. 2014); United
States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004). The government subpoenaed
Breaux, Erica’s neighbor, but Breaux did not appear. The prosecution presented
evidence that Breaux sustained significant injuries in a recent automobile accident
and was unable to travel from Springfield to Kansas City for the hearing.2 The
government attempted to serve a subpoena at the address that Jones, the 911 caller,
had provided to law enforcement, but Jones did not then reside at the address. The
government also attempted to reach Jones at telephone numbers that she had provided
to law enforcement, but the cell phone numbers had been disconnected and no one
answered the landline number. This case is distinguishable from United States v.
Timmons, 950 F.3d 1047, 1050 (8th Cir. 2020), where the government made only a
single failed attempt to serve a witness who lived at an address known to the
government, and United States v. Sutton, 916 F.3d 1134, 1139 (8th Cir. 2019), where
the government made no attempt to subpoena one witness, no attempt to contact a
second witness at the address and telephone number that he provided to police, and
only one attempt to subpoena a third witness at a known address.
The evidence that Harris assaulted Erica bears indicia of reliability. There was
convincing medical evidence that Erica had been assaulted. Jones, the 911 caller, and
Breaux, the neighbor, independently told police that Erica identified Harris as her
attacker. Erica’s statements to both declarants came in the recent aftermath of the
assault and typically would qualify as reliable statements of present sense impression
or excited utterance. See Fed. R. Evid. 803(1)-(2); United States v. Dean, 823 F.3d
2At the hearing on Friday, August 25, the prosecutor stated that Breaux “had
a car accident on Friday,” suggesting the previous Friday, August 18. The evidence
was not that precise, but it shows that the accident was recent. The probation officer
testified that she spoke with Breaux on August 8, that Breaux “indicated she initially
could attend on that day,” but “then she had been in an automotive accident,” and
“she would no longer be available.”
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422, 427-28 (8th Cir. 2016) (per curiam); United States v. Graves, 756 F.3d 602, 605-
06 (8th Cir. 2014). The statements were made “while the event was fresh in her
memory and before she had an opportunity to recant as not infrequently done by
victims of domestic abuse.” United States v. Farmer, 567 F.3d 343, 347 (8th Cir.
2009). Erica did not directly identify her assailant to police when they arrived, but
she spontaneously asked for help to change the locks on her apartment—a request
that naturally points to Harris as a spouse with a key. All of these statements
corroborate each other and provide another indicium of reliability through their
consistency. See United States v. Sheridan, 859 F.3d 579, 583 (8th Cir. 2017) (“In
reviewing the reliability of hearsay and double hearsay evidence, we have considered
factors such as the consistency of the hearsay testimony, the timing and nature of the
declarant’s statements, and the witness’s impressions of the declarant’s demeanor, as
well as other corroborating evidence.”).
Rule 32.1 and due process considerations require a balancing process when
determining whether a court may rely on out-of-court statements to support a
revocation. Our decision in Bell posited the easier cases for allowing and disallowing
a decision based on hearsay evidence, but many cases fall in a gray area. This is not
a clear case for requiring confrontation where the government showed neither an
unreasonable burden to present live testimony nor indicia of reliability for the hearsay
evidence. See Bell, 785 F.2d at 643. On the other end of the spectrum, this is not a
clear case for allowing a decision based on hearsay testimony after a “strong
showing” of good cause. Id.
But not every showing of good cause must be a “strong” showing of good
cause. We conclude that the government here provided reasonably satisfactory
explanations for the absence of witnesses—a victim of assault who reasonably could
have feared reprisal, a witness who recently sustained significant injuries in a car
accident, and a witness who could not be found at the address or telephone numbers
that she provided to police after the incident. The hearsay statements in which Erica
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identified her assailant corroborated each other, and the timing of Erica’s statements
in the wake of the assault indicated reliability. We are satisfied overall that the
district court’s determination is consistent with the interest of justice and the
guarantee of due process.
The judgment of the district court is affirmed.
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