Wednesday, May 5, 2021
Court of Appeals of Mississippi Find Statement Against Interest Inadmissible Under Rule 804(b)(3)(B)
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, when are there insufficient corroborating circumstances under subsection (b)? That was the question addressed by the Court of Appeals of Mississippi in its opinion today in Williams v. State, 2021 WL 1745956 (Miss. App. 2021).
In Williams, Lavar Williams was convicted of possession of schedule I and II (marijuana and cocaine) controlled substances with intent to sell, conspiracy to sell a schedule I controlled substance (marijuana), and possession of a firearm by a felon. After he was convicted, Williams appealed, claiming that the trial court erred in preventing him from introducing an affidavit by Michael Brown in which he accepted all liability for the marijuana confiscated.
The Court of Appeals of Mississippi disagreed, holding that
The first admissibility requirement was not satisfied because Williams and his defense counsel failed to apply a reasonable and diligent effort to secure Brown's presence at trial. While Williams' counsel claimed that they were unable to locate and serve a subpoena on Brown, his counsel did not request a trial subpoena until the Friday prior to the start of trial. Mississippi law requires that a party make a diligent effort to procure the testimony of an “unavailable” witness....Here, the circuit court found that Williams had not exercised due diligence in trying to locate and serve a subpoena on Brown. Thus, Brown was not an unavailable witness as required under Rule 804(a)(5)(B).
Second, the court concluded that
A review of the record reveals that Brown's affidavit does place all the criminal liability regarding the confiscated marijuana on him. However, even if Brown's affidavit is deemed against his penal interest, Williams failed to show the statement's “corroborating circumstances...indicat[ing]...its trustworthiness.”...While Brown's affidavit was sworn, another witness's affidavit was obtained on the same day and manner as Brown's. Dexter Smith testified that not only had Williams transported him to the attorney's office to obtain a similar affidavit to Brown's, but that Smith was scared of Williams and that Williams had threatened the lives of Smith's family. Smith's testimony resulted in a recantation of his affidavit. In determining the admissibility of Brown's affidavit, the circuit judge noted and considered Williams' two prior felony convictions, his general feeling that these types of statements were products of coercion, and Smith's recantation of his affidavit, which was taken on the same day as Brown's. Based on those considerations, the circuit judge found that the affidavit was not supported by corroborating circumstances clearly indicating its trustworthiness. We agree. Therefore, we cannot say that the circuit court abused its discretion in finding that Brown's affidavit was hearsay not within an exception.