Tuesday, March 27, 2012
It's Not About The Money: Court Of Criminal Appeals Finds Dementia Rendered Statement Not Against Interest
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 the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
Whenever I initially explain Rule 804(b)(3) to students, the example I give of a statement that is against a declarant's pecuniary interest is a statement by a declarant that he gave or owed money to a defendant charged with stealing that money. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Cooper, 2012 WL 950103 (Tenn.Crim.App. 2012), contains that exact fact pattern, but with a twist.
In Cooper, Greta Cooper was convicted of eight counts of theft of property valued over $500, three counts of theft of property valued over $1,000, one count of theft of property valued over $10,000, and twelve counts of forgery. Cooper was the caretaker for an elderly gentleman, Lonzia Taylor, and allegedly stole the subject property from him. At trial, Taylor was "unavailable" to testify pursuant to Tennessee Rule of Evidence 804(a)(4) due to dementia, and defense counsel unsuccessfully argued that the jury should hear an audio recording of Taylor's statement that he gave Cooper the money which was the subject of her theft convictions.
After she was convicted, Cooper appealed, claiming for the first time (in writing) on appeal that the audio recording was admissible under Tennessee Rule of Evidence 804(b)(3) as a statement against interest. Specifically, Cooper claimed that Taylor had not been deemed incompetent at the time that the audio recording was made and that his statement that he gave Cooper the money was clearly against his pecuniary interest.
The Court of Criminal Appeals of Tennessee agreed in theory but then found that even though Taylor had not been deemed incompetent at the time that the audio recording was made he did not have knowledge that his statement was against his pecuniary interest. And, according to the court, this lack of knowledge was fatal to the admission of the statement under Tennessee Rule of Evidence 804(b)(3):
Rule 804(b)(3) does not specifically provide that the declarant must have personally known that the statement was against his or her interests when it was made. However, this knowledge is the reason a hearsay statement is viewed as sufficiently reliable to be admitted, and the evidence should not be admitted if it is established that the declarant did not know that the statement was harmful. For example, if the declarant actually believed that he or she was saying something that would be helpful, reliability is questionable and the statement should not be admitted under this hearsay exception.
Thus, according to the court,
In the case herein, we determine that the statement was not sufficiently reliable. There was testimony at trial that Mr. Taylor was suffering from mild to moderate Dementia in December of 2008, prior to his statement to authorities. Thus, the hearsay statement was not admissible. Therefore, in our view, Appellant has failed to show that the trial court violated a clear and unequivocal rule of law with respect to the exclusion of the evidence as hearsay. In other words, plain error review is not necessary. Appellant is not entitled to relief.