UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit. 

2 
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 

3 
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 

4 
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. 

5 
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-bywrongdoing 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-bywrongdoing 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 

7 
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 nonconstitutional 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 

12 
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 doublesuicide 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. 

13 
 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 codefendant asked her to fabricate a story regarding their 

criminal activities and to “keep it” between all the codefendants, 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 codefendant.” 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. 

16 
17 

V. 

 For the aforementioned reasons, we affirm the district 

court’s evidentiary findings and affirm Darry’s conviction. 

AFFIRMED