EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 13, 2008

I Said , "M-I-S-T-R-I-A-L," Mistrial: Pennsylvania Judge Declares Mistrial After "Hearsay" Testimony About Voice Mail

Here's a strange ruling from a Pennsylvania case.  After Leslie Kerstetter's husband died of cancer, her alcohol and drug problems became severe enough to lead her to seek help through the Dauphin County Drug and Alcohol Services office.  There, Kerstetter met Christopher W. Shenk, a recovering alcoholic who worked as a counselor for the county.  The two started dating, and Leslie was subsequently found dead in the couple's home on March 28th after Shenk called for an ambulance.  Shenk was subsequently charged with Leslie's murder.

This week, at Shenk's trial, the prosecution and defense counsel both agreed that on March 26th, the couple was arguing about Leslie's drinking, with Leslie repeatedly taking taxis to the liquor store after Shenk had dumped her bottles of liquor.  Both sides also agreed that the argument got physical, but defense counsel claimed that while Shenk shoved Leslie during the argument, he did nothing to intentionally harm her.  The prosecution countered that Shenk beat Leslie to death.

As part of its case, the prosecution called Leslie's adult daughter Ashley to testify concerning a voice mail message that her mother left on her phone on March 26th.  Both the prosecution and defense counsel expected that Ashley was only going to testify that the voice mail made her believe that Shenk was beating her mother, not that she was going to relay her mother's statements on the voice mail.  Instead, Ashley surprised both sides by testifying that on the voice mail, her mother said, "Chris is beating me.  I'm scared, I'm scared.  Get off me, get off me."  The judge agreed with defense counsel's argument that this testimony was barred as hearsay and thus granted a mistrial.  Deputy District Attorney Christopher Dreisbach said he plans to argue on appeal that the same testimony by Ashley should be allowed on re-trial because the mother's statements constituted a present sense impression.

It's unclear from the article on the case exactly what happened, but it seems clear that either the judge or the DA is deserving of a, "What was he thinking?"  In other words, if the DA raised the present sense impression argument, why did the judge declare a mistrial?  And if the DA did not raise the argument at trial, why did he not raise it?

Clearly Leslie's voice mail message was hearsay under Pennsylvania Rule of Evidence 801(c) in that it was a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted -- that Shenk was in fact beating Leslie.  Thus, Ashley's testimony about the contents of the voice mail was inadmissible unless a hearsay exception applied.  And I would say two clearly applied.

First, as the DA noted (but did he do so at trial?), Leslie's statement was a present sense impression under Pennsylvania Rule of Evidence 803(1) because it was "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  Here, Leslie's statement that Shenk was beating her, and her statement, "Get off, get off" clearly indicate that Leslie was relaying an event that was presently occurring, making the exception applicable.

Second, Leslie's statement was an excited utterance under Pennsylvania Rule of Evidence 803(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."  Leslie's statement related to a startling event -- being beaten -- and her statement that she was "scared" indicated that she was under the stress of that event when she sent the voice mail. See, e.g., Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. 1993). 

Thus, regardless of who committed the error in this first (mis) trial, I believe that Ashley's testimony will be allowed on re-trial.



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I just discovered this article the other day and wanted to thank you...

Posted by: Ashley Kerstetter | Jul 29, 2008 9:00:35 PM

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