Wednesday, August 7, 2013
Broken Record?: Does a Judge Have to Make an On-The-Record Determination of Unavailability Under Rule 804(a)?
Similar to its federal counterpart, Mississippi Rule of Evidence 804(a)(4) provides that a witness is "unavailable" at trial if he "Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity...." In turn, if a witness is "unavailable," a party may admit some of his statements pursuant to the hearsay exceptions contained in Rule 804(b). So, does a court have to make an on-the-record determination that a witness is "unavailable" before admitting his hearsay under Rule 804(b)? According to the recent opinion of the Court of Appeals of Mississippi in McKenzie v. State, 2013 WL 3985012 (Miss.App. 2013), the answer is "no."
In McKenzie, Rodney Phillip McKenzie Jr. was convicted of capital murder and sentenced to life imprisonment. After he was convicted, McKenzie appealed, claiming that the trial court erred in deeming Detective David Sepulveda's deposition testimony admissible under the former testimony exception to the rule against hearsay contained in Mississippi Rule of Evidence 804(b)(1).
Specifically, McKenzie claimed that the circuit court erred by failing to make an on-the-record determination that Sepulveda was unavailable pursuant to Mississippi Rule of Evidence 804(a)(4). According to the Court of Appeals of Mississippi, the record revealed that
During the motions hearing held on February 2, 2012, Detective Sepulveda testified he had congestive heart failure, which had resulted in serious medical complications, including high blood pressure, and that he had been hospitalized once a month since April 2011. He told the court that he was “lucky to be alive right now” and that his “heart was about four times the size of normal heart, so there's a lot of damage inside.” Detective Sepulveda also stated that he was scheduled for laparoscopic surgery on February 15, 2012, to remove a tumor and his adrenal gland.
The circuit judge noted at the motion hearing that the detective's surgery was scheduled “almost into the trial or right before” and stated: “I also made a point of noticing the officer's demeanor throughout. He's certainly short of breath, and struggled based on his health problems, had to have a water break, soft spoken.” Later, at trial, it was determined that Detective Sepulveda's medical condition had rendered him too weak to testify in person, making him an “unavailable” witness and allowing for the introduction of his deposition testimony, over the defense's objection.
Based upon this evidence, the Court of Appeals of Mississippi was able to find that the circuit court acted properly even though it did not issue a written order explaining why Sepulveda was "unavailable." Instead, the court satisfied its obligation because
There was extensive discussion at the motions hearing regarding the detective's serious medical condition. Detective Sepulveda was scheduled for surgery two weeks prior to trial, although it is unclear from the record whether the surgery to remove his adrenal gland tumor had been performed by the time of the trial. Regardless, while the detective was not in the hospital on March 1 (the date he had been originally scheduled to testify), his numerous physical infirmities were well documented to the circuit court and determined to be of such severity that testifying in person could have been detrimental to his health. The next morning, the State notified the circuit judge that Detective Sepulveda was “in extreme pain” and could not get up from a chair.