Monday, September 22, 2008
Against All Odds: Arkansas Court To Decide Admissibility Of Alleged Statements Against Interest In Double Homicide Case
According to an article last week, 20 year-old Jesse Lee Westeen of Fayetteville, Arkansas, who is charged as an accomplice to murder, wants a judge to allow hearsay evidence at his trial starting today because two defense witnesses are unavailable. Specifically, the prosecution alleges that Westeen was an accomplice to capital murder in the shooting deaths of Kevin Jones and Kendall Rice. More specifically, the prosecution claims that Westeen drove Gregory Decay to an apartment belonging to Jones and Rice on April 3, 2007, when Decay fatally shot them both in the face. In April, Decay was convicted on two counts of capital murder and sentenced to the death penalty on both counts.
So, what are the hearsay statements that Westeen wants to introduce? According to the article, they are statements made to Fayetteville police by Decay and another man named Vlydraus Dupree. Unfortunately, the article doesn't make clear the substance of those statements or the identity of Mr. Dupree, but I'd be willing to bet dollars to doughnuts that they are purported statements against interest which will incriminate Decay and Dupree and exonerate Westeen.
And indeed, the article notes that the statements of Decay and Dupree to police will not be admissible unless they are declared "unavailable" at Westeen's trial, a prerequisite for application of the statement against interest exception to the rule against hearsay. You see, for the statement against interest exception to apply, the court must first find the declarant "unavailable" under Arkansas Rule of Evidence 804(a). So, how is Westeen likely to fair under this Rule?
Well, he claims that Decay, whose case is on appeal, refuses to testify, citing his Fifth Amendment right against self-incrimination, while Dupree cannot be found. Assuming that the motion is accurate, both witnesses should be declared "unavailable," Decay because he will likely "be exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement" under Arkansas Rule of Evidence 804(a)(1), and Dupree because he will likely be absent from the trial, with Westeen "unable to procure his attendance" under Arkansas Rule of Evidence 804(a)(5).
Having disposed with the "unavailability" requirement, the question becomes whether the statements of Decay and Dupree satisfy the requirements of the statement against interest exception. That exception, contained in Arkansas Rule of Evidence 804(b)(3), allows, as an exception to the rule against hearsay, for the admission of:
"A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
Now, as I noted, the article on the case doesn't reveal the substance of the statements by Decay and Dupree, but let's assume that they were indeed sufficiently against their interests. That would leave the difficult question of whether there were sufficient "corroborating circumstances." As I have noted before, courts have used a variety of tests in deciding whether there are sufficient "corroborating circumstances," with my preferred test being the Fourth Circuit's five factor test. So, what's the law of the land in Arkansas?
Well, unfortunately, Arkansas law is pretty vague. It tells us that in determining whether there were sufficient "corroborating circumstances," "[t]he totality of circumstances and the conditions from which the statement arose should be considered," but it doesn't tell us much else. Luster v. State, 1997 WL 225083 (Ark.App. 1997). All we really know is that if the proponent of a statement against interest claims that there were sufficient "corroborating circumstances" based upon the argument that "the proof was in the pudding," an Arkansas court will likely reject his argument. Wallace v. State, 2004 WL 1059787 (Ark.App. 2004).