EvidenceProf Blog

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

Monday, November 24, 2008

Available For A Limited Time: Court Of Appeals Of Texas Finds Trial Court Made Erroneous Former Testimony Ruling

The recent opinion of the Court of Appeals of Texas in Loun v. State, 2008 WL 4937833 (Tex.App.-Texarkana 2008), provides a nice explanation of when a declarant is "available" for hearsay purposes.

In Loun, Michael Alan Loun appealed from his conviction for murder while under the immediate influence of sudden passion.  The victim, Jack Edward LaPelley, III, knocked on the door of the apartment of Loun's girlfriend, Jodi Clark, and demanded entry.  Five persons were present in the apartment including Loun, Rashaan Roberson, and Miranda Fancher, LaPelley's girlfriend. LaPelley, who was intoxicated, wanted to talk with Fancher, and because LaPelley had a history of physically abusing Fancher, Clark assumed Fancher would not want to talk with him.

After telling LaPelley to leave through the closed and locked door, Clark then opened the door a crack and LaPelley forced his way into the apartment.  Loun ordered LaPelley to leave, but LaPelley refused, and Loun pointed a gun at him and demanded that he leave.  LaPelley responded by unsuccessfully attempting to slap the gun out of Loun's hand.  When Loun recovered his balance, he shot LaPelley three times, leading to him being indicted for murder.

While Loun's first trial resulted in a hung jury, his second trial resulted in a unanimous verdict finding Loun guilty, but the jurors were unable to agree on punishment. The trial court thus declared a mistrial on punishment only, and, after a third trial, the jury found Loun acted under the immediate influence of sudden passion and assessed a sentence of ten years.

During that third trial, the prosecution presented the recorded testimony of Roberson, who had testified before the third trial, inter alia, that he did not believe LaPelley was a threat to anyone in the apartment.  Roberson was a sailor from Maine, and the prosecution presented his recorded testimony under Texas Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay.

The third trial's transcript reveals that his testimony was introduced as follows:

     "[Defense Counsel]: Your Honor, under 804 hearsay exceptions, without them bringing a witness they have to prove that declarant is unavailable which has not been proven in this case. That is why we are saying the testimony be excluded based on hearsay.

     [Prosecutor Biggs]: Your Honor, the witness is unavailable. County can't pay for him to come back down here from Maine again. He's got prior recorded testimony.

     THE COURT: Oh, this is the sailor?

     [Prosecutor Atkinson]: This is Rashaan Roberson.

     [Defense Counsel]: That is not one of the reasons that the county cannot pay for.

     [Prosecutor Atkinson]: I don't think that prior recorded testimony requires unavailability of the declarant.

     [Defense Counsel]: Rule of evidence 804B.

     THE COURT: Kind of an unusual situation is that witness has testified, has been subject to cross-examination of this case. The trouble is he wasn't subject to physical appearance before this jury. Objection is going to be overruled. I sure hope the State thinks it's on safe ground."

Unfortunately for the judge, his ruling was more of a bridge over troubled water, resulting in Loun's appeal.  Defense counsel was correct that for testimony to be admitted under a Rule 804(b) hearsay exception, the proponent must first prove that the declarant is "unavailable" under Rule 804(a).  And the only way that Roberson might have been deemed "unavailable" was under Texas Rule of Evidence 804(a)(5), which states that a declarant is "unavailable" when he "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means."

The problem for the State was that to establish unavailability under this Rule, it had to:

     "make some good-faith efforts to produce the witness at trial or to show any efforts would be futile. The State's only explanations in this case were 1) it would be too expensive and 2) the incorrect legal conclusion the State had 'no way to procure his attendance.' The State argues, even though there is no evidence it attempted to subpoena Roberson, it should not be required to perform a useless act because, according to the State, a subpoena does not reach across state lines. We note the State 'is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good-faith efforts to produce a witness at trial....'  Compulsory process for a witness located outside of Texas can be obtained under the 'Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings....' The record does not contain any evidence that attempting compulsory process in this case would be futile.  Because there is no evidence of any good-faith efforts, the State failed to show it made good-faith efforts to secure Roberson's presence."



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