Saturday, July 24, 2021
Supreme Court of Wyoming Finds Statements Were Improperly Admitted Under Prior Consistent Hearsay Exclusion
Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement that
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground
The language in subsection (ii) was added by amendment in 2014. Many states still have the pre-amendment version of the rule, including Wyoming. Wyoming Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement by a declarant that is "consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." So, how does this unamended version of this "prior consistent statement" exclusion apply?
In Thompson v. State, 2021 WL 3087551 (Wyo. 2021), Lloyd James Thompson was convicted of two counts of aggravated assault and battery. According to the evidence at trial,
In the early evening hours of June 30, 2019, Kristine Booth-Thompson returned home after attending her niece's bridal shower in Colorado. She did not have her house keys, so she called her husband, Mr. Thompson, to let her in. Mr. Thompson arrived five minutes later, and they entered the home. Ms. Booth-Thompson went to the kitchen to make herself a late lunch, while Mr. Thompson retreated to the bedroom to watch a movie. A short time later, Mr. Thompson, who was intoxicated, accused Ms. Booth-Thompson of having an affair and called her vulgar names. Ms. Booth-Thompson grabbed her insulin bag and left the house on foot, planning to walk to her sister's house. Mr. Thompson followed her in the couple's Jeep.
As Ms. Booth-Thompson was walking down the right-hand side of the road, Mr. Thompson drove up quickly behind her and hit her left arm with the Jeep's passenger side mirror. Ms. Booth-Thompson continued walking. Mr. Thompson tried to cut her off by driving on the right shoulder of the road approaching her right side. In doing so, he almost ran over her right ankle. Ms. Booth-Thompson crossed the road and continued walking. Mr. Thompson followed her, demanded she get in the Jeep and come back to the house with him, and said if she did not, “he'd put a couple rounds in [her].” Ms. Booth-Thompson did not get in the Jeep “because [she] was afraid [of] what would happen if [she] did.” Mr. Thompson pulled out a gun and pointed it at her. Ms. Booth-Thompson turned away and heard the gun go off behind her.
At trial, after Booth-Thompson testified, the prosecution had two officers -- Officer Gallinger and Sergeant Ellis -- testify about her prior consistent statements to them. After he was convicted, Thompson appealed, claiming that these prior statements didn't satisfy Wyoming Rule of Evidence 801(d)(1)(B). The Supreme Court of Wyoming agreed, holding that
Mr. Thompson did not impeach Ms. Booth-Thompson's credibility in a manner described by Rule 801(d)(1)(B) prior to Officer Gallinger's and Sergeant Ellis's testimony. In his brief opening statement, defense counsel admitted Mr. Thompson “pick[ed] a fight” with Ms. Booth-Thompson, followed her down the road, “tried to get her to get in the [Jeep],” and shot “the gun behind her back.” He argued, however, he did not intend to harm her with the Jeep or the gun but was just “trying to get her attention.” This argument did not expressly or impliedly charge Ms. Booth-Thompson with recently fabricating her story or acting under an improper influence or motive. Similarly, during cross-examination of Ms. Booth-Thompson, defense counsel merely clarified her version of the events and where on the road they occurred. He did not suggest she had recently concocted her story or was being improperly influenced or motivated.
The officers’ testimony repeating Ms. Booth-Thompson's out-of-court statements was not admissible under Rule 801(d)(1)(B). The district court may have recognized this because it did not admit the testimony under this rule, as the State requested, but rather found its own reason to permit the testimony. It allowed the testimony to provide context to the officers’ investigation.
That said, the court deemed the error in admitting the testimony harmless and upheld Thompson's convictions.