August 24, 1984: Defendant's Response to Government's
Opposition to Motion for New Trial
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, plaintiff
CASE No. 75-26-CR-3
JEFFREY R. MACDONALD, defendant
OPPOSITION TO MOTION
FOR NEW TRIAL
THE LAW OF THE CASE DOCTRINE DOES NOT PRECLUDE
CONSIDERATION OF THE NEWLY DISCOVERED EVIDENCE
OF STOECKLEY'S POST-TRIAL STATEMENTS
The Government contends that the earlier holding that Stoeckley was an inherently unreliable witness remains as the law of this case and controls in this motion even though the holding was upon the limited information available at trial and the instant motion is based upon newly discovered evidence. The Government urges that regardless of the detailed character of the new Stoeckley statements and the substantial corroboration thereof, the defendant is fore- closed by the doctrine of law of the case from citing the newly discovered evidence of Stoeckley's admission of culpability and the independent evidence of corroboration in support of his Rule 33 New Trial Motion. This assertion is based upon a misconception of the doctrine of law of the case. Law of the case means that a decision of a legal issue by an appellate court establishes "the law of the case" which must be followed in all subsequent proceedings in the same case. However it is well settled that such a decision does not establish the "law of the case" when:
(1) the evidence on a subsequent trial was substantially different,
(2) controlling authority has since made a contrary decision of law applicable to such issues, or (3) the decision was clearly erroneous and would work manifest injustice.
Morrow v. Dillard, 580 F.2d 1284, 1290 (5th Cir. 1978) citing White v. Murtha, 377 F.2d 428 (5th Cir. 1967).
As more particularly discussed below, the Fourth Circuit's determination is not the law of the case with regard to the instant motion because (1) the instant motion is based on newly discovered evidence, and (2) the controlling law on the application of Section 804(b)(3) has changed since the Fourth Circuit issued its opinion in this case.
A. The evidence which defendant seeks to offer at
a new trial is substantially different than the
evidence offered at the first trial
The Fourth Circuit's determination that Stoeckley's statements did not satisfy the requirements of Federal Rule of Evidence 804(b)(3) was based on information then available to the trial court.1
At the time the trial court made its findings, there was little information available about Stoeckley, who had refused to cooperate with anyone. Her statements about her involvement in the case were vague and highly equivocal. Indeed, the defense learned in its post-trial investigation that Stoeckley had been purposefully vague at trial because she was afraid and wanted to confuse the judge. It was this same vagueness on Stoeckley's part and absence of significant corroborating facts which caused the court to hold that she was unreliable. The defendant's post-trial investigation resulted in a detailed statement by Ms. Stoeckley which was corroborated in numerous instances by facts developed upon further investigation.2
The evidence offered herein with regard to Stoeckley is qualitatively and quantitatively different from the evidence available at trial.
1/ The Fourth Circuit stated:
"The district court . . . concluded the declarations were untrustworthy because of Stoeckley's pattern of remarks in admitting and denying complicity rendered her hopelessly unreliable and because her pervasive involvement with narcotic drugs, and her admissions that she was under virtually continual influence of the drugs when these statements were made further manifested unreliability."
2/ For a through recitation of the corroborating circumstances uncovered by the defense see defendant's Motion for New Trial.
B. The controlling law on the applicability of
804(b)(3) of the Federal Rules of Evidence has
changed since the Fourth Circuit issued its
In United States v. MacDonald, 688 F.2d 224 (4th Cir. 1982) the Fourth Circuit based its holding as to Stoeckley's unreliability entirely upon the district court's finding. The court stated:
"While MacDonald is able to point to a number of corroborating circumstances, he does not demonstrate, finally, that they make Stoeckley's alleged declaration trustworthy. . . . Given the declarant's 'pathetic' appearance, our conviction is that the District Court was not in error in adjudging that defendant failed to carry his burden under Rule 804(b)(3)."
In no other case has the exclusion of an exculpatory statement depended so much upon the court's judgment of the personal character of the declarant. The Corroboration Requirement of Federal Rule of Evidence 804(b)(3) and United States v. MacDonald: How Things Should Not Work, 131 University of Pennsylvania Law Review, 999, 1012. Indeed, in a subsequent case, the Fourth Circuit reversed its interpretation of Rule 804(b) (3) in MacDonald stating unequivocally that the declarant's character is irrelevant in determining the admissibility of a statement under Rule 804(b) (3). United States v. Brainard, 690 F.2d 1117 (4th Cir. 1982). The Brainard court stated:
"The rule requires not a determination that the declarant is credible, but a finding that the circumstances clearly indicate that the statement was not fabricated. It is the statement rather than the declarant which must be trustworthy."
Id. at 1124.
Thus, not only does the newly discovered evidence render the application of the law of the case doctrine inappropriate but, the Fourth Circuit's Brainard modification of its earlier Rule 804(b) (3) determination as to Stoeckley, especially in light of the new corroboration.
GREGORY MITCHELL'S STATEMENTS ARE ADMISSIBLE
UNDER FEDERAL RULE OF EVIDENCE 804(B) (3)
The Government contends that Mitchell's alcoholic condition at the time he made inculpatory statements to Norma and Bryant Lane makes it unlikely that these statements could meet the "clearly trustworthy" requirements of Rule 804(b) (3). (Opposition to Motion for New Trial, p. 6). However, as discussed, supra section I B, because Gregory Mitchell's statements to the Lanes would tend to expose Mitchell to criminal liability and are being offered to exculpate Dr. MacDonald, these statements are admissible under section 804(b) (3) because corroborating circumstances clearly indicate their trustworthiness. Under the Fourth Circuit's pronoucement in United States v. Brainard, supra, Mitchell's alleged alcoholic condition is irrelevant to the "clearly trustworthy" requirements of Rule 804 (b) (3). As discussed, supra, Brainard held that Rule 804(b) (3) does not require a determination that the declarant is credible, but rather "a finding that the circumstances clearly indicate that the statement was not fabricated."
Each of Gregory Mitchell's statements is corroborated in significant detail and the circumstances clearly indicate that his statements were not fabricated.
A. Corroboration of Mitchell's statement
Mitchell's statements to the Lanes are corroborated by the nonspecific confession to a group of people at a prayer meeting at the Manor House in Fayetteville by a man who was positively identified as Mitchell.3 (Motion for New Trial, p. 25). Mitchell's statements are further corroborated by Ann Sutton Cannady, Juanita Sisneros and Reverend Randy Phillips' reconstruction of the incident in which they saw a man whom they identified as Mitchell running from a farmhouse operated by the Manor House, and immediately thereafter discovered the words, "I killed MacDonald's wife and children" written in fresh paint across the wall. See Defendant's Motion for New Trial, pp. 25, 26.
Both Mitchell's Manor House confessions and his statements to the Lanes are in turn corroborated by the following:
1. Forensic evidence that the blow which killed Colette was inflicted by a club swung in a left-handed swing and was consistent with a blow inflicted by a left-handed person;
2. The statement of Mitchell's widow that Mitchell was left-handed.
3. The statement of Mitchell's widow that Mitchell was stationed at Fort Bragg, North Carolina upon his return from Vietnam until his discharge from the military in February 1971, and that upon his discharge he remained in the Fayetteville area until 1972 and was enrolled in a drug rehabilitation program in Fayetteville.
These corroborating circumstances clearly indicate that Mitchell's statements were not fabricated and that they thus satisfy the corroboration requirements of Rule 804(b)(3). Corroborating circumstances "need not be sufficient to remove all doubt with respect to the hearsay statement." United States v. Brainard, supra. In Brainard, the exculpatory statement of an alleged co-conspirator whose personal credibility was highly questionable was admitted based on two corroborating circumstances: the record revealed "no apparent reason for (the declarant] to lie," and exculpatory statements were made by the declarant "on a number of occasions." The court reversed the trial judge's exclusion of the statements and noted that had they been admitted as required by the Rule, the government could have argued to the jury that they were not credible. Id. at 1125, n. 14.
As in Brainard, there is no apparent reason for Mitchell to have lied. In fact, the circumstances of his confessions, both to the Lanes and at Manor House, suggest a guilt-relieving religious need to get his heinous deeds off his chest. As in Brainard, Mitchell made inculpatory statements on a number of occasions. The case at bar, in fact, presents an even stronger situation for admissibility under Brainard because in addition to those circumstances which the Brainard court found to be sufficient in and of themselves, several additional details corroborate Mitchell's statement.4
3/ Assuming arguendo that the Government hearsay affidavit of Randy Phillips is accurate and Phillips was able to positively identify the man as Mitchell, Cannady and Sisneros' affidavits stand unrefuted.
4/ The Government's assertion that Mitchell's statements to Phillips, Cannady and Sisneros were not inculpatory is similarly without merit. 804(b) (3) requires that from the perspective of the average, reasonable person a statement must have been truly adverse to the penal interest, considering when it was made. United States v. MacDonald, 668 F.2d 224, 232. Mitchell stated to a group of people he had only known for a few days that he had committed murders. He then wrote a confession of the specific murder on the wall of the Manor farmhouse. It is incomprehensible that the Government would suggest that such confessions are not truly adverse to Mitchell's penal interest when made. Moreover, Mitchell's fleeing both the Manor House and the Manor farm- house after each respective confession indicate his subjective awareness that he had subjected himself to punishment.
DR. MACDONALD HAD NO OBLIGATION TO RAISE
THE ISSUE OF HELENA STOECKLEY'S POST-TRIAL
STATEMENTS ON DIRECT APPEAL
The Government's assertion that Dr. MacDonald's failure to move for a new trial during the pendency of his appeal "was a deliberate bypass of the direct appeal process" thus mandating the application of the cause and prejudice standard of United States v. Frady, 456 U.S. 152 (1982) and United States v. Norris, 687 F.2d 899 (7th Cir. 1982) is disingenuous. This Government assertion involves a serious misunderstanding of the law and a misapplication of Frady, supra, and United States v. Norris, 687 F.2d 899 (7th Cir. 1982).
Rule 33 of the Federal Rules of Criminal Procedure provides in relevant part:
"A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment."
Where an appeal is taken, "final judgment" for purposes of Rule 33 from the termination of the appellate process. Casias v. United States, 337 F.2d 354 (10th Cir. 1964).
It is thus absurd to suggest that Dr. MacDonald had an to raise the issue of the newly discovered Stoeckley statements on appeal. In fact, it would have been inappropriate for Dr. MacDonald to have proceeded in that fashion. A claim of discovered evidence cannot be asserted for the first time at an appellate hearing. United States v. Beal, 404 F.2d 58 (6th Cir.1968) cert. denied, 89 S.Ct. 869 (1969). See also, Moore's Federal Practice 3303[21, p. 33-22.5 Rule 33 itself indicates that an appeal is not the proper procedural vehicle through which to raise newly discovered evidence. It provides in relevant part: ". . . if an appeal is pending the court may grant the motion only upon remand of the case . . . . "
Moreover, in asserting that Dr. MacDonald should have moved for a new trial during the pendency of the appeal the Government is suggesting that the defendant's statutory right to move for new trial within two years from the termination of the appellate process must be exercised when he first discovers exculpatory evidence. Not only would this abridge defendant's Rule 33 rights, but it would thwart the purpose of a motion for new trial which is to allow the judicial system to clean up after itself by correcting injustices produced by the system. Former Supreme Court Justice Felix Frankfurter articulated the purpose of a motion for new trial:
"American criminal procedure has its defects . . . .But its essentials have behind them the vindication of centuries . . . . All systems of law, however wise, are administered through men, and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, but the capacity to correct errors of inevitable frailty is the mark of a civilized legal mechanism. Grave injustices, as a matter of fact, do arise even under the most civilized systems of law and despite adherence to the forms of procedure intended to safe-guard against them."
5/ Although defendant had the option under Rule 33 to move to remand the case on the basis of newly discovered evidence there is no obligation to do so under the Rule.
THE ALLEGED EVIDENCE IN THE MOTION FOR NEW
TRIAL IS NEWLY DISCOVERED EVIDENCE WHICH
COULD NOT HAVE BEEN DISCOVERED BY THE EXERCISE
OF REASONABLE DILIGENCE
The Government asserts that counsel "misrepresents to the court that the identities of certain named individuals6 . . . became known after trial when they came forward or were brought to the defense's attention by their friends." In so arguing, the Government speaks with the advantage of hindsight, and in so doing actually highlights the significance of the post-trial Stoeckley statements as newly discovered evidence.
First, the assertion that anything Stoeckley said after trial could have been discovered before trial through the exercise of due diligence is ludicrous. Stoeckley refused to cooperate with anyone prior to trial. She even admitted that she purposefully tried to confuse people because she was afraid.7 This refusal to cooperate, moreover, is consistent with guilt and therefore makes her post-trial statements even more significant. Had she nothing to hide, she would have cooperated pre-trial.
As for the other witnesses allegedly known to the defense prior to trial, it is respectfully submitted that prior to post-trial statement the defense had no reason to believe these witnesses were offering any relevant information and no reason to pursue them. For example, hippie sightings at Dunkin' Donuts (Frankie Bushey), or the drive-in (Mabel Campbell) had no significance until Stoeckley's post-trial statement reflected that Stoeckley and her group were at Dunkin' Donuts prior to the murders. That these witnesses did not appear to be relevant at the time is further underscored by Madden affidavit #10 in which Madden relates that Mabel Campbell told him that she called the CID at Ft. Bragg prior to 1979 with the same information, and received no response from them.8
Due diligence does not require the highest degree of diligence. United States v. Gordon, 246 F.Supp. 522, 525 (D.C. Colo. 1965). "It is simply 'diligence' which means ordinary diligence. That is a relative term and depends on the circumstances of the case." Id. at 525. In United States v. Gordon, supra, the court granted a motion for a new trial holding that under the circumstances defendant's trial counsel had acted when he had failed to discover - prior to trial - that the complaining witness had been convicted of a felony. The court stated:
"There is no suggestion that there was any deliberate effort to make a scanty investigation with a view to using something that might be found later as a basis for a new trial if conviction resulted. On the contrary, the attorney acted in good faith throughout, although perhaps he was not as imaginative as others might have been under the same circumstances."
Id. at 525.
Similarly, in the case herein, the circumstances under which witnesses came forward indicates that there was no reason to pursue them at the time. Defense counsel were in the midst of a long and harried trial and they could only afford the time to pursue what appeared to be relevant leads at that time. Here, as in Gordon, the attorneys acted in good faith throughout, and there is "no suggestion that there was any deliberate efforts to make a scanty investigation.
6/ Addie Willis Johnstone, Frankie Bushey, Mabel Campbell, Betty Garcia and Lynn Markstein.
7/ See Motion for New Trial, Declaration of Ernest Davis.
8/ Of course, had the Government perceived the relevance of Campbell's information it had an absolute duty to disclose the information to the defense under Brady v. Maryland.
STOECKLEY'S POST-TRIAL STATEMENT IS RELIABLE
BECAUSE IT HAS BEEN CORROBORATED BY AN
INDEPENDENT INVESTIGATION BEGUN IN 1982.
The Government has attempted to discredit the methods used to obtain the Stoeckley statement and to assert that these methods render the Stoeckley statement and any subsequent evidence regarding the Stoeckley group as worthless. Notably, however, the Government has not refuted Stoeckley's statement or the corroborative evidence.
Notwithstanding the inaccuracy of the Government's regarding the conduct of Messrs. Beasley and Gunderson, Stoeckley's statement has been corroborated by an investigation conducted by Mr. Raymond Shedlick completely independent of either Beasley and Gunderson.
The sheer number of corroborating details in this case, obtained subsequent to the Gunderson/Beasley investigation, make it impossible to shrug them off as bizarre coincidence. Judge Murnaghan's observation in his concurring opinion are of particular significance.
"Helena Stoeckley was shown to be a person of no fixed regularity of life, roaming the streets nocturnally at or about the time of the crimes, dressing in a bizarre fashion, and capable of so short-circuiting her mental processes through an indiscriminate taking of drugs that (a) she could well accept her presence and, to some extent her involvement in the MacDonald murders, and (b) she could become so separated from reality that, on the fatal evening, she was ripe for persuasion to participate. . . . The record in this case satisfies that among the possible motivations leading to the statements of Helena Stoeckley fabrication was not a likely one.
"I conclude with the observation that the case provokes a strong uneasiness in me . . . . [T]he way in which a finding of guilt . . . system is reached is, in our enduring system of law, at least as important as the finding of guilt itself. I believe MacDonald would have had a fairer trial if the Stoeckley related testimony had been admitted."
688 F.2d 2242 235-36.
If the little evidence which existed at the time of trial regarding Helena Stoeckley provoked a strong sense of uneasiness the corroborative evidence now available, including the unguarded admissions of Stoeckley's associates as to their participation, is compelling. The evidence corroborating the Stoeckley group's involvement in the crime is the issue herein and should not be beclouded by ad hominem attacks.
THE NEWLY DISCOVERED EVIDENCE
IS NOT CUMULATIVE
The Government contends that the statements of new witnesses regarding the Stoeckley group's presence in and around Fayetteville on the evening of and morning after the murders were merely cumulative, and thus not sufficient to support a new trial. In support of its argument, the Government points to the testimony offered before the Jury by Kenneth Mica and James Milne, both testified to having seen suspicious-looking young persons in the general vicinity of the MacDonald home.
The newly discovered evidence regarding the statements band identification of Dr. MacDonald's assailants are far from cumulative of Mica and Milne's statements. "Cumulative evidence replicates other admitted evidence." United States v. Ives, 609 F.2d 930 (9th Cir. 1980). The newly discovered evidence herein is qualitatively different from Milne's and Mica's testimony which was offered to corroborate Dr. MacDonald's account of his four young assailants. Mica, a military policeman recounted that while en route to the crime scene he saw a young woman wearing a dark raincoat and matching rain hat standing on a street corner some five blocks from the crime scene. Milne testified that at about midnight on the night of the murders he saw a girl and two males wearing white sheets and carrying candles walking toward the MacDonald house. (TR 5452-5459, 5473-5484).
In sharp contrast, the newly discovered statements9 corroborate Stoeckley's post-trial account of the involvement of Stoeckley and her colleagues in the MacDonald murders. They are not cumulative of Mica and Milne's testimony. They relate to new subject matter. Far from random sightings of unidentifiable persons, the new witnesses' accounts affirmatively place Stoeckley and her cohorts on the night of the murders in the various referred to in Stoeckley's statement.
For example, Stoeckley's statement that on the evening of February 16, 1970 members of her group went to North Carolina State University Extension School to speak with Colette MacDonald regarding their desire that Dr. MacDonald assist them with their drug problems is corroborated by Edith Boushey's statement that on February 16, 1970 she saw a group of young people who did not appear to be students, including a woman resembling Stoeckley and a man resembling Mitchell, approach Colette MacDonald at the University.
Similarly, Stoeckley's statement that at some time between midnight and 2:00 a.m. she, Greg Mitchell, and Smitty went to Dunkin' Donuts, after having ingested marijuana and mescaline is corroborated by Marian L. Campbell's and Frankie Bushey's statements that they saw persons matching the Stoeckley group's descriptions at Dunkin' Donuts and that they appeared to be high on drugs.
Stoeckley's statement that she arrived at her apartment in a car with Mitchell, Harris, and Smitty at approximately 1:30 or 2:00 a.m. on the morning after the murders is corroborated by Sheriff Blaine O'Brian's statement that he heard Detective Beasley contact the Fayetteville Police dispatcher at 2:30 a.m. on February 18, 1970 regarding persons whom Beasley reported as possibly involved in the MacDonald murders. Sheriff O'Brian also corroborated the statement of Detective Beasley's, excluded at trial, that he observed Stoeckley and three males arrive at her apartment at that time and called for help.
As the Beasley and Stoeckley testimony was totally excluded, the new evidence cannot be said to be cumulative of it.
Far from being merely cumulative of the testimony offered at trial, these newly discovered statements provide corroboration for specific points of Stoeckley's inculpatory post-trial statement.
9/ Mabel Campbell, Edith Boushey, Frankie Bushey, Marian L. Campbell, Blaine O'Brian, and others.
Dated: August 24, 1984
WADE M. SMITH
THARRINGTON, SMITH & HARGROVE
By WADE M. SMITH
Attorneys for Defendant
CERTIFICATE OF SERVICE
I certify that on August 24, 1984, I caused to be deposited in the United States mail, postage prepaid, the requisite number of copies of DEFENDANT'S RESPONSE TO GOVERNMENT'S OPPOSITION TO MOTION FOR NEW TRIAL on the following attorneys for the government:
Brian M. Murtagh, Esq.
Office of the U. S. Attorney
District of Columbia
Special Prosecutions Section, Room 4401
Washington, D.C. 20001
Samuel T. Currin, Esq.
United States Attorney
Post Office Box 26897
Raleigh, North Carolina 27611
WADE M. SMITH