Sunday, December 2, 2007
Another State of Mind: Why The State Of Mind Exception Shouldn't Cover The Future Acts Of Non-Declarants
The murder trial of high school seniors Jean Pierre Orlewicz and James Letkemann provides a good case for me to air a grievance about how some courts apply the state of mind exception to the rule against hearsay. Orlewicz and Letkemann are facing charges of first-degree premeditated murder, felony murder, and mutilation of a corpse in connection with the death of Daniel Sorensen. Sorensen was found burned, beheaded, and stabbed 13 times in a garage belonging to Orlewicz's grandfather. The Wayne County medical examiner's office has stated that an autopsy on Sorensen revealed that he was already dead before he was burned and beheaded.
At the preliminary examination of Orlewicz and Letkemann, Sorensen's girlfriend, Breana Milow was allow to testify:
(1) that Sorensen occasionally carried a revolver and a knife and expected to collect $3,000 on the day he was killed; and
(2) that he went to the garage on the day he was killed to extort money from someone Orlewicz knew.
However, when Millow attempted to testify that Sorensen told her that he had gone to the garage earlier that week and that the floors were covered with a tarp, the judge sustained defense counsel's objection that this testimony constituted inadmissible hearsay.
Michigan Rule of Evidence 803(3), its "state of mind" exception to the rule against hearsay, indicates that "[a] statement of the declarant's then existing state of mind..." is admissible. Rule 803(3), however, only allows for statements about future acts to be admissible. Thus, a husband's statement to his wife that he was about to go to the grocery store would be admissible to prove that the husband in fact planned to go to the grocery store. In the same way, Sorensen's statements to Milow that he planned to collect $3,000 on the day that he was killed and that he was going to the garage to extort money from someone were admissible under the rule.
On the other hand, Rule 803(3) does not allow for the admission of statements of memory or belief to prove the fact remembered or believed. See, e.g., People v. Moorer, 683 N.W.2d 736, 742 Mich.App. 2004). This is the reason why Sorensen's statement about going to the garage earlier in the week was inadmissible. All courts adhere to this past/future dichotomy.
There is a split among courts, however, as to whether the state of mind exception allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person. In other words, some courts would have only allowed Milow to testify that Sorensen was going to the garage to extort money from "someone," while other courts, like the Michigan court, would have allowed Milow to testify that Sorensen was going to the garage to extort money from someone Orlewicz knew: presumably Letkemann.
First, I don't see how courts can follow the latter line of reasoning. Courts in the days before the Federal Rules of Evidence allowed for the admission of statements that reflected on not only the state of mind of the speaker, but which also spoke to the alleged future acts of some other person in cases such as Mutual Life Insurance of New York v. Hillmon; however, in passing Federal Rule of Evidence 803(3), the Report of House Committee on the Judiciary made clear that the Rule was only intended to allow for the admission of statements to prove the conduct of the declarant, not to prove the future conduct of another person. Notwithstanding this legislative history, some courts have erroneously applied the Rule to allow for the admission of statements reflecting on the future acts of both the speaker and another person. See Glen Weissenberger, Judge Wirk Confronts Mr. Hillmon, 81 B.U. L. Rev. 707, 713 (2001). (It is unclear from the Sorensen case whether the Michigan court became one of those courts or whether defense counsel merely failed to object to the testimony.).
The second point that I want to raise is that courts following this latter line of reasoning are contradicting themselves by, in effect, allowing for the admission of statements of memory or belief to prove the fact remembered or believed. In effect, Sorensen's extortion statement can be broken down into two components. First, he told Milow that he planned to go to a gargage to extort money from someone. This portion of his statement was not a statement of memory because its validity did not rest upon Sorensen's reflective capacity. Sorensen could have told the person he was supposed to meet (and extort) that he planned to meet him in a high rise apartment building, and when he talked to Milow he could have incorrectly remembered his prior conversation and thought that the meeting was supposed to be at a garage. His faulty memory, however, would not discredit his statement. When Sorensen talked Milow, he planned to go to the garage, and unless he later changed his mind, he would have ended up at the garage.
The second component of Sorensen's statement was that he planned to meet someone Orlewicz knew -- presumably Letkemann. This portion of the statement was a statement of memory because its validity rested upon Sorensen's reflective capacity. Here, let's assume that Sorensen thought that he was meeting with Letkemann based upon the statement of Orlewicz or Letkemann earlier in the week. Let's say in fact, though, that he was instead supposed to meet some third person -- John Doe -- at the garage. Here, Sorensen's faulty memory would discredit his statement. When Sorensen talked to Milow, he planned to meet with Letkemann, but if his memory were incorrect, he would instead have met up with Doe. Therefore, this portion of Sorensen's statatement would be a statement of memory or belief to prove the fact remembered or believed and should have been held inadmissible.