EvidenceProf Blog

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

Wednesday, October 3, 2012

That's Not A (Butcher) Knife: Court Of Appeals Of Mississippi Finds Doctor Properly Declared "Unavailable" For Hearsay Purposes

Similar to its federal counterpartMississippi Rule of Evidence 804(a)(5) provides that a declarant is "unavailable," meaning that his hearsay statements can be admitted under a Rule 804 hearsay exception if he

Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means...

So, what is the test for determining whether the proponent of a hearsay statement under Rule 804 has satisfied Rule 804(a)(5)? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Thomas v. State, 2012 WL 4497345 (Miss.App. 2012).

In Thomas, Anthony Thomas was convicted of aggravated assault and being a felon in possession of a weapon. These convictions were the result of Thomas stabbing Karen Burkes with a knife. But what type of knife?

Dr. Toevs, a critical-care surgeon, cared for Burkes while she was recovering in the intensive-care unit. She testified that Burkes had suffered two stab wounds to the chest injuring her left lung and her internal mammary artery and causing substantial bleeding....

Dr. Toevs testified that the blade would have to be several inches long to injure the internal mammary artery because it lies beneath the sternum.

Dr. Toevs' testimony came at Thomas' first trial, after which Thomas' conviction was reversed. At a second trial, the prosecution claimed that Dr. Toeves was unavailable:

The State had its criminal investigator, R.D. Thaggard, testify on his efforts to locate Dr. Toevs. Thaggard stated that he began searching for Dr. Toevs two months before trial by speaking to her former colleagues at the University of Mississippi Medical Center, performing an internet search, and contacting a hospital in Virginia. He was unable to locate Dr. Toevs, and he stated that another investigator had also been unable to find her

The trial court deemed Dr. Toevs "unavailable" under Rule 804(a)(5), allowing for the admission of her former testimony under Mississippi Rule of Evidence 804(b)(1).

After he was convicted, Thomas appealed, claiming, inter alia, that the trial court erred in deeming  Dr. Toevs "unavailable." Moreover, Thomas claimed that this error required a new trial because section 97–37–5 of the Mississippi Code Annotated prohibits a convicted felon from possessing "any firearm or any bowie knife, dirk knife, butcher knife, [or] switchblade knife...." Thomas claimed at trial that the subject knife was a steak knife, which is not covered by section 97–37–5, and he asserted on appeal that Dr. Toeves' testimony was critical to the jury instead finding that the knife was a butcher knife. At trial, the prosecution introduced the knife handle but not the knife blade, which was never recovered.

In addressing this argument, the Court of Appeals of Minnesota found that "[o]ur supreme court has held that the State must make a 'diligent effort' to locate a missing witness." The court then quickly found that the State satisfied this "diligent effort" test, noting that, in another case,

our supreme court held that attempts made by the district attorney's secretary to locate two missing witnesses were adequate to satisfy the diligent-effort test....The secretary issued subpoenas to Parchman where it was suspected the witnesses might be located....Upon being informed that one prisoner was released to Washington County, she contacted the county but was unable to locate the witness and made no further efforts....

Following the diligent-effort standard, we find the State made reasonable and diligent efforts to locate Dr. Toevs. It was not required to do everything conceivable to locate her. The trial court committed no error when it held that the State established Dr. Toevs's unavailability Dr. Toevs's unavailability.

I'm not sure that I agree with this result. In the other case, subpoenas were actually issued to the witness to where it was suspected that he might be located. In Thomas, the investigator merely conducted an internet search, talked to former colleagues, and called a hospital. Was that enough? How hard is to track down a presumably practicing doctor. I don't know, and I can't speak to the specific efforts of the investigator(s) in Thomas. But it certainly seems to me that the unavailability of the doctor was a closer call than the court made it appear.



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Agree with you CM. I'll buy into the idea that "It was not required to do everything conceivable to locate her" but certainly the action in this case do not meet the definition of diligence. Look at the standard from other areas of the law. If this was the effort a stockbroker put into research before recommending a stock to a trust could the trust be said to have exercised its "due diligence". I don't think so. I don't think the state should be rewarded for its laziness.

Posted by: Daniel | Oct 3, 2012 1:50:21 PM

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