Guest Post by Memphis Attorney Neil Umsted
A witness’ claimed lack of memory at trial, whether legitimate or feigned, will trigger a number of rules that can allow that witness’ prior statements to be introduced as substantive evidence, the Tennessee Supreme Court held in State v. Marlo Davis, W2011-01548-SC-R11-CD. Moreover, the Court held that so-called “inconsistent verdicts” will not, standing alone, entitle a defendant to any relief.
Marlo Davis was indicted along with a co-defendant for felony murder and premeditated murder—alternative theories of guilt for the homicide of a single victim. At trial, one of the State’s key witnesses, Jarcquise Spencer, testified that he did not recall witnessing the shooting, that he did not recall identifying the Defendant as the shooter in a statement to police, and that he did not recall testifying at the preliminary hearing in the case. The trial court, convinced that Spencer was feigning his memory loss, allowed the State to introduce Spencer’s prior statements and prior testimony as proof of the defendant’s guilt.
As expected, the defense took great issue with the trial court’s ruling allowing the prior statements into evidence. They were classic hearsay, and were very prejudicial to the defense. But as the Court explained, the Tennessee Rules of Evidence provide plenty of support for prosecutors seeking to have this type of proof introduced as substantive evidence. The Court held that Spencer’s prior statement and testimony were correctly introduced under Rule 803(5), 803(26), and, to a certain extent, 804(b)(1).
1. Recorded recollection exception.
The Court first addressed the trial court’s ruling introducing the prior written statement as a so-called “recorded recollection” under Tenn. R. Evid. 803(5). As applied to this case, the written statement that Spencer made to police only days after the shooting would have been admissible under the rule if the State established that Spencer had “insufficient recollection to testify” at trial. Davis advanced a logical argument. He claimed that Spencer did not have insufficient recollection; rather, he was merely feigning his memory loss. This argument was bolstered by the trial court’s clear suspicion that Spencer was willingly reluctant to testify. The Court, however, rejected this argument and offered some persuasive reasoning supporting its holding. First, it is nearly impossible for a judge to determine whether a witness is being truthful about his or her memory loss (although there was some indication that the witness recalled the facts when he met with the prosecutor just days earlier). Second, it would “hamper the truth-finding function of the trial” to exclude a highly probative and well-documented statement simply because a witness claims no memory of making the statement. Thus, the Court held that the prior written statement was admissible despite the trial court’s suspicion that the witness was feigning memory loss.
2. Prior inconsistent statement of a testifying witness.
Next, the Court reviewed the trial court’s ruling that the prior written statement and the prior sworn testimony were both admissible under the newest hearsay exception found in Tenn. R. Evid. 803(26). Under this rule, a prior inconsistent statement can be introduced as substantive evidence if a multitude of criteria are met. Traditionally, a prior inconsistent statement was admissible only for impeachment purposes—a technical distinction that has probably been lost on most lay juries. To explain, a prior inconsistent statement was admissible only to prove that the witness has given two different versions of events. Juries could not consider the contents of the prior inconsistent statement for its truth, only for the fact that two different statements have been made. And, the argument goes, because the witness has given different versions, his or her trial testimony is not to be believed. However, Rule 803(26), adopted in 2009, allows prior inconsistent statements for their truth, subject to several conditions including an opportunity to cross-examine. So, if at trial the witness testifies that “Joe” committed the crime alone, but at an earlier preliminary hearing he testified that “Joe” and “John” committed the crime together, the preliminary hearing testimony could be admissible under 803(26) as proof of John’s guilt.
In Davis, the dispute originated, again, from the witness’ alleged memory loss he asserted at trial. While Rule 803(26) contains many criteria that must be satisfied, the one relevant in Davis was whether Spencer’s trial testimony was, in fact, inconsistent with his prior statements. The defense argued that “because Spencer offered no substantive statements at trial [due to his memory loss], his prior statements could not be ‘inconsistent.’” In rejecting this argument, the Davis Court reasoned that “[a] prior statement relating particular facts is certainly not consistent with a subsequent lack of recollection.” The Court also noted other Tennessee cases that have supported the holding that, if a witness has no memory of making a statement, the prior statement can be used for impeachment purposes. Finally, the Court again noted that to exclude the prior statements simply because a witness claims to have no recollection would impede the truth-seeking function of the trial.
3. Procedure concerning declaring a forgetful witness unavailable.
The Davis Court further considered the trial court’s ruling introducing the prior preliminary hearing testimony under Rule 804(b)(1), which governs former testimony of a now unavailable witness. The main import of this analysis concerns the appropriate procedures a trial court should follow prior to declaring a witness “unavailable” for purposes of this rule. The Court outlined the lengthy (and entertaining) dialogue between the trial court, the litigants, and the witness. It noted that the trial court fell just short of explicitly ordering the witness to testify, which it should have done before declaring the witness unavailable. But in the grand scheme of the trial, that error was harmless because the witness was unwavering in his claimed memory loss, and if the trial court would have ordered him to testify, the result would have been the same.
Significance of the Court’s holding that a forgetful witness’ prior testimony can be introduced as substantive proof:
Davis is significant in part because it shuts down the most common argument against allowing prior statements of a forgetful witness: the claim that memory loss is not inconsistent, and therefore, that prior statements should be excluded under the limitations placed on introduction of such statements. Davis makes clear that when a witness claims to have no memory of making a prior inconsistent statement, it is equivalent to denying the prior statement altogether, and thus, the prior statement is admissible as substantive proof.
It also should not be lost on practitioners and General Sessions courts that Davis exemplifies the vital importance of the preliminary hearing. Davis describes one of the many scenarios in which a preliminary hearing can be transformed from a procedural probable cause determination into an actual piece of evidence that a jury can use to convict or acquit. There are endless reasons why a witness’ preliminary hearing testimony might differ from his or her trial testimony. Attorneys must realize that such testimony could very well be played in the future for a jury charged with determining guilt or innocence, and thus, they should proceed with the preliminary hearing having adequately prepared and investigated the case. More importantly, General Sessions judges should recognize that a preliminary hearing is no longer just a routine procedural necessity. The rules of evidence have evolved to provide a readily accessible avenue by which the preliminary hearing can become part of the body of proof; in essence, a continuation of the official investigation into a criminal case. Routinely, judges sustain relevance objections made at a preliminary hearing by ruling: “this is just a probable cause hearing, it’s not a trial… move on, counselor.” However, now that 803(26) allows for such testimony to be used as proof, judges should not minimize the preliminary hearing to a mere probable cause determination. Instead, they should allow attorneys to fully develop a witness’ direct testimony and to fully challenge the witness through cross-examination. A less restrictive preliminary hearing might better serve all involved, including a future jury who might be called upon to consider the full context of such proof.
4. Inconsistent verdicts.
The other significant aspect of Davis involves analysis of so-called “inconsistent verdicts” and “mutually exclusive” verdicts. Davis was indicted for first degree felony murder in perpetration of robbery, and first degree premeditated murder. The two counts represented alternative theories of guilt for the homicide of one victim. The jury convicted Davis of second degree murder as a lesser included offense to felony murder, and reckless homicide as a lesser included offense to premeditated murder—a nonsensical combination of verdicts. The defense argued that the verdicts were mutually exclusive and therefore the second degree murder conviction should have merged into the reckless homicide conviction. The defense’s argument was premised on the fact that the jury had to have acquitted Davis of second degree murder in order to reach reckless homicide, and then convicted him of second degree murder in the other count. The Court stopped short of labeling the verdicts as “mutually exclusive” and instead described them as an inconsistency between two convictions on alternative counts arising from a single action.
Prior to Davis, defense lawyers could make a variety of legitimate arguments on this frequently-arising issue due to the lack of case law from the Tennessee Supreme Court on the topic (the only Tennessee Supreme Court case to broach the topic was over forty years old). But the Davis Court conducted an exhaustive survey of the law on inconsistent verdicts from a number of jurisdictions. This survey illustrated the Court’s point that “the determination of whether inconsistent verdicts are ‘mutually exclusive’ is a vexatious one.” The many nuances that have developed within this issue prove hard to follow, and the Court ultimately declined to open Tennessee law up to such confusion and speculation concerning a jury’s deliberations. The Court reaffirmed that consistency among verdicts is not required. The Court concluded that, as long as there is sufficient proof to sustain the verdicts in each count, the Defendant will not be entitled to relief. The Court further rejected the defendant’s argument that the inconsistent verdicts violated Double Jeopardy. The Court succinctly pointed out that “[t]he jury’s determination that the Defendant killed the victim knowingly necessarily proved that the Defendant also acted recklessly.” And, since the reckless homicide conviction merged into the second degree murder conviction, the Court found no Double Jeopardy violation.
In cases that involve multiple charges, juries frequently render verdicts that do not seem to make much sense or align with the facts. Davis makes clear that challenges to such inconsistencies will oftentimes be futile.
Read the Tennessee Supreme Court’s opinion in State v. Marlo Davis here.