State v. AmosState v. Amos
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- Before:
- Anderson
OPINION
ANDERSON, RUSSELL A., Justice.
Appellant Robyn Keith Amos, Sr. was found guilty by a jury of aiding and abetting a drive-by shooting, in violation of
To place the evidentiary ruling in context, a brief factual summary is necessary. Appellant Robyn Keith Amos, Sr. is the father of Robyn Keith Amos, Jr. and Melissa Moe. On October 14, 2000, Moe was involved in a fistfight with Laura Jackson, Amos, Sr.’s friend, at the home of Dawn Hayes. Police were called, restored order and left without making any arrests. Later that day, again at the Hayes residence, Moe and another person known as P.J. fought over Jackson’s missing wedding band. Jackson had removed her jewelry before the fight with Moe, and Moe had been told that P.J. had the missing item. Moe struck P.J. with a large flashlight, and P.J. reciprocated by hitting Moe with an ironing board. Police were again called, and P.J. was taken to a hospital. Later that same day, Amos, Sr. called the Hayes residence and told Hayes that “[Jackson’s] rings had better show up or some shit is going to go down.” Amos, Jr. also called, telling Hayes: “[the rings] needed to show back up,” or “some shit’s going to go down.”
Shortly after that phone conversation, Hayes’ mother looked out the door to see if her grandchildren were outside. She saw a burgundy or red car moving slowly down the street. She recognized Amos, Sr. as the driver, Amos, Jr. as a passenger, and saw a third unidentified person in the rear seat. She closed the door. Shortly afterwards, as she was sitting on the couch, she heard a series of gunshots from the back of the house. A neighbor living across the alley saw a burgundy or maroon
Police were called. One of the responding officers was directed by Moe and Hayes to the back of the residence where he discovered bullet holes in the fence between the alley and the residence and bullet holes in the side of the residence itself. Police collected 15 discharged shell casings in the alley. Another officer patrolling nearby heard the description of the vehicle and pulled over a maroon Cadillac Eldorado with three people in the car, one of whom was identified as Amos, Sr. In the ensuing investigation, police recovered a nine-millimeter TEC-9 semiautomatic handgun that ballistics experts determined had fired at least two shell casings found in the alley behind the Hayes residence. Amos, Sr. was charged with aiding and abetting a drive-by shooting and Amos, Jr. was charged with a drive-by shooting, a charge later amended to aiding and abetting.
Amos, Jr. was tried first. At Amos, Jr.’s trial, Moe testified that she saw Amos, Sr.’s car behind the Hayes residence before the shooting and that Amos, Jr. was a passenger in the vehicle.
State v. Amos,
No. C4-01-713, 2002 WL 418369, at *2 (Minn.App. Mar.19, 2002). She identified the TEC-9 semiautomatic handgun as Amos, Jr.’s gun, and she testified that Amos, Jr. kept the gun under his bed. Two weeks later, at Amos, Sr.’s trial, Moe recalled the fight with Jackson but recalled nothing further about the day of the shooting incident, stating that she was confused and emotional. She remembered testifying at her brother’s trial and acknowledged that she had tried to be truthful then, “as much as [she could] remember.” When efforts to refresh Moe’s recollection failed, the court excused the jury and allowed argument concerning the admissibility of Moe’s prior testimony. The court found from its observation of the state’s questioning of Moe that she had feigned a lack of memory and, over Amos, Sr.’s objection, allowed the use of Moe’s prior testimony as an inconsistent statement under
The jury found Amos, Sr. guilty as charged, and he received the 78 month presumptive sentence. The court of appeals affirmed, rejecting claims that the trial court’s evidentiary ruling admitting Moe’s prior testimony as substantive evidence was improper under
Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn.1990). On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997).
Amos, Sr. argues that Moe’s prior testimony does not qualify as inconsistent statements under Minn R. Evid. 801(d)(1)(A) because her lack of memory was not inconsistent with her prior testimony at Amos, Jr.’s trial. Amos, Sr. further argues that this lack of memory made Moe “unavailable,” in which case her prior testimony would have been admissible, if at all, under
To qualify as nonhearsay, a prior sworn statement must be inconsistent with the declarant’s trial testimony.
Some state courts also treat prior testimony as inconsistent with feigned claims of memory loss and admissible as nonhearsay. See, e.g., State v. Osby, 246 Kan. 621, 793 P.2d 243, 250 (1990) (determining that witnesses’ testimony “was contradictory to their prior testimony,” and “admissible as a matter of judicial discretion”); Nance v. State, 331 Md. 549, 629 A.2d 633, 645 (1993) (stating that a court may admit prior statements when witnesses display a selective loss of memory); State v. Devlin, 251 Mont. 278, 825 P.2d 185, 187 (1991) (noting that inconsistency “includes both positive contradictions and claimed lapses of memory”); State v. Brown, 138 N.J. 481, 651 A.2d 19, 49 (1994) overruled on other grounds, State v. Cooper, 151 N.J. 326, 700 A.2d 306 (1997) (concluding that a claimed lack of memory is essentially a denial of the prior statement, making the statement inconsistent and not hearsay); State v. Lenarchick, 74 Wis.2d 425, 247 N.W.2d 80, 87 (1976) (holding “where a witness denies recollection of a prior statement, and where the trial judge has reason to doubt the good faith of such denial, he may in his discretion declare such testimony inconsistent and permit the prior statement’s admission into evidence.”).
In addition, commentators agree that feigned lack of recollection at trial amounts to inconsistency for purposes of qualifying prior sworn statements as non-hearsay:
When is a prior statement inconsistent? On the face of it, a prior statement describing an event would not be inconsistent with testimony by the witness that he no longer remembers the event. Yet the tendency of unwilling or untruthful witnesses to seek refuge in forgetfulness is well recognized. Hence the judge may be warranted in concluding under the circumstances the claimed lack of memory of the event is untrue and in effect an implied denial of the prior statement, thus qualifying it as inconsistent and nonhearsay.
2 John W. Strong, McCormick on Evidence § 251, at 121 (4th ed.1992) (footnotes omitted). See also Weinstein & Berger, supra, at § 801.21(2)(b) (“A witness’s statement that he or she has no recollection of the subject may be treated as ‘inconsistent’ with a former statement concerning the now-forgotten matter.”). Professor Wigmore’s view predates the modern trend of admitting prior inconsistent statements not only to impeach but also as substantive evidence, but he has observed:
It ought to follow that, where the witness now claims to be unable to recollect a matter, a former affirmation of it should be admitted as a contradiction. But courts have usually forbidden this, because the improper effect is apt to be to give a testimonial value to the former statement. * * * But the unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes impregnable unless his flank can be exposed to an attack of this sort. An absolute rule of prohibition would do more harm than good, and the trial court should have discretion.
We agree with the prevailing view that a trial court ought to have discretion to admit an unwilling witness’s prior testimony as inconsistent with the witness’s purported lack of memory at trial. The policy of affording protection against the unwilling witness was fully implicated in this case. Moe, under oath and subject to cross-examination, testified in some detail at her brother’s trial to the events before, during, and after the shooting. Two weeks later, she claimed that she could not remember the shooting incident and that she was too emotional and confused to recall most of her previous testimony. Moe was obviously an evasive and reluctant witness, and the dubious circumstances surrounding her claimed memory loss made it entirely reasonable for the trial court to conclude that the memory loss was feigned. Moe’s purported inability to recall the details of the shooting at her father’s trial was plainly inconsistent with her ability to remember the same details at her brother’s trial two weeks earlier.
The apparent necessity for the admission of prior testimony, however, does not in itself satisfy the requirements of
Here, Moe testified at Amos, Sr’s trial. She admitted that she testified at Amos Jr.’s trial two weeks earlier and that she had tried to tell the truth at that time. Although she claimed no recall of much of that testimony or the basis of the testimony, counsel for Amos, Sr. had a full opportunity to test the prior testimony. In fact, the record reflects that counsel for Amos, Sr. effectively cross-examined Moe not only concerning the prior testimony but also as to the basis of that testimony, eliciting from Moe details of the shooting incident favorable to the defense. Counsel for Amos, Sr. also elicited testimony from which he was able to argue that Moe’s prior testimony should not be credited. Clearly, Moe was subject to cross-exami-natipn within the meaning of
In summary, we hold that where a trial court finds that a witness is feigning lack of memory of the underlying events described in prior sworn testimony, the witness’s prior testimony is admissible as inconsistent under
Affirmed.
Notes
.
A statement is not hearsay if—
(1) Prior statement by a witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition * * *.
.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. * * * In a criminal proceeding involving a retrial of the same defendant for the same or an included offense, testimony given as a witness at the prior trial or in a deposition taken in the course thereof.
. The advisory committee’s comment to