Opinion
ID Nos. 9901000155/9901000330/9901000322/9901002572
Date Submitted: March 17, 2000
Dated Decided: March 20, 2000
Upon Defendants "Motion in Limine to Exclude the Victim's Statements: GRANTED .
MEMORANDUM OPINION
The defendants, James Anderson, Richard Roth, Sr., Richard Roth, Jr., and Moises Ordorica are charged with two counts of Murder in the First Degree, as well as related charges, in connection with a December 31, 1998 robbery of Jaime Antunez. The robbery allegedly occurred at JR Mexican Supermarket in Newport. In the process of robbing the supermarket. the victim was shot numerous times. The victim was hospitalized for fifty-five days until complications from the gunshot wounds resulted in his death on February 24, 1999. While hospitalized, the victim gave three separate statements describing the suspects and the events of the robbery. The victim gave the first description to his wife, Rita Orosco, on January 3, 1999; two subsequent statements were given to Detective Bramble of the Delaware State Police on January 6, 1999 and February 2, 1999.
The defendants are charged with three separate robberies and other related offenses occurring over a nine day time period. The defendants are being tried separately; however, this decision applies to all defendants.
The State seeks to introduce as evidence at trial those statements made by the victim pursuant to Delaware Uniform Rules of Evidence 803(24), the "catch-all" exception to the hearsay rule. On November 22, 1999, the defendants filed a motion in limine seeking to exclude all statements of the victim made in the weeks prior to his death. The Court held a two-part hearing on this matter which was followed by briefs submitted by the State and the defendants. Briefing having been completed, the issue is now ready for decision.
D.R.E. 803 (24) provides:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that: (A) The statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
It is the State's position that the victim's statements evidence an inherent trustworthiness and meet the three requirements for admission set forth in Rule 803(24). First, the statements are offered as material fact; the statements recall the events of December 31, 1998, describing the crime and the individuals who committed the crime. Second, the State argues the statements, directly from the mouth of the victim, are more probative than any other evidence the State may offer. Finally, the State contends that the victim had a strong incentive to tell the truth in relaying the events of the robbery to assure the assailants were identified; therefore, the interests of justice would be served by admitting the statements into evidence. The State relies upon two cases, Government of the Virgin Islands v. Joseph and Williamson v. State of Delaware to support admission of the victim's statements under DRE 803(24).
3rd Cir., 964 F.2d 1380 (1992).
"Del. Supr., 707 A.2d 350 (1998).
The defendants argue that the statements of the victim are hearsay and are inadmissible because: 1) the State has failed, as a threshold matter, to satisfy the strict procedural and substantive requirements of the Rule itself; 2) the statements are inadmissible under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 7 of the Delaware Constitution; 3) the statements fail to bear particularized guarantees of trustworthiness, such that the statements would be presumptively reliable; and 4) the State's reliance upon Williamson v. State is faulty, in light of the distinguishing facts of this case, and in light of Lilly v. Virginia and Barrow v. State
___ U.S ___ 119 S.Ct. 1887 (1999).
Del. Supr., No. 64, 1998, Walsh, J. (February 3, 2000).
On March 14, 2000, in response to Defendants' opening brief; the State responded that the "other witness" was in the back office of JR Supermarket when the suspects entered the store and was forced to remain on the office floor at gunpoint throughout the robbery. She was not with the victim in the register area, and was unable to identify the shooter or to confirm the comments by two of the defendants that the State seeks to introduce at trial. The State contends that only the victim's statements can relay certain specifics of the events in question, and therefore, the victim's statements are more probative than Rodriguez' testimony or any other evidence the State can procure.
The Court finds that the victim was alone in the register area with the perpetrators at the time the incident took place, and is the only person able to describe the perpetrators and certain specific circumstances surrounding the shooting. The Court notes that the victim's statements are however corroborated by certain parts of Defendant Anderson's statement. The statements of the victim are marginally more probative than Defendant Anderson's statement.
THE CONFRONTATION CLAUSE
The defendants contend that admission of the victim's statements will violate their right to confront the witnesses against them as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Delaware Constitution. The use of hearsay statements by an unavailable witness deprives a defendant of the right to force the declarant to submit to cross-examination; however, the statements may be admissible under an exception to the hearsay rule if the statements meet the requirements for the Confrontation Clause. In order to meet those requirements, the prosecution must produce or demonstrate the unavailability of the declarant, and the prosecution must show that the statement bears adequate "indicia of reliability." "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." The residual hearsay exception is not a firmly rooted hearsay exception for Confrontation Clause purposes.
The Confrontation Clause states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ."
Ohio v. Roberts, 448 U.S. 56 (1980).
Joseph, 964 F.2d at 1386 (citing Ohio v. Roberts, 448 U.S. 56 (1980)).
Idaho v. Wright, 497 U.S. 805, 110 S.Ct. at 3146 (1990).
Joseph, 964 F.2d at 1386-87 (citing Wright, 110 S.Ct. at 3147).
In Joseph, after determining that the residual hearsay exception was not a firmly rooted hearsay exception, the Court looked to whether the prosecution made a sufficient showing of particularized guarantees of trustworthiness for Confrontation Clause purposes. The Court rejected the use of corroborating evidence to support a hearsay statement's "particularized guarantees of trustworthiness" as it would "permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial." The court may only look to factors related to the circumstances surrounding the making of the statement. And unless a court finds that the proffered statement is "so trustworthy that adversarial testing can be expected to add little to [the statement's] reliability," then the court must refuse to admit the statement into evidence.
Id.
Id. at 1387.
White v. Illinois, 502 U.S. 346, 357 (1992).
In Joseph, the Court held that it is not sufficient to argue that the victim had no motive for lying; instead, the burden is on the government to show that the victim had a motive for telling the truth. The Court weighed whether a statement by a victim identifying his or her assailant carries with it the same guarantees of trustworthiness as more firmly rooted hearsay exceptions, and in comparing this situation to the hearsay exception for statements made for purposes of medical diagnosis, found that "a victim of an assault is likely to have a similarly strong motivation to assure that his or her assailant is correctly identified, located, tried and convicted in order to prevent another assault."
Joseph, 964 F.2d at 1388.
Guarantee of Trustworthiness
Defendants assert in the case sub judice that the statements of the victim fail to meet the standard of trustworthiness. The defendants rely on Lilly v. Virginia where the United States Supreme Court specifically focused on the words that were stated by the victim and the setting in which the statements were made to find that the statements of the victim did not meet the trustworthiness test.First, the defendants argue that the words spoken by the victim are not the sole product of his memory and recollection because the victim relayed to Detective Bramble that it was determined that $2,300 was taken in the robbery. Because the victim was not present at the inventory of the store, the defendants argue that the source of this information could not come from within his own observation and thus his entire statement to police is "contaminated by the thoughts and assertions of unknown parties."
Def Opening Brief at 6.
Defendants next raise the issue of the victim's physical condition during the course of his hospitalization. It is undisputed that the victim was in critical condition, there was testimony that the victim was in a state of constant pain, he experienced fevers, anxiety and stress. He underwent seven surgical procedures. There was testimony indicating nightmares and hallucinations, including the victim believing he saw the shooter in the hospital room with him. He was treated with morphine for the pain and other medications for the anxiety. The defendants argue that this condition rendered the victim unable to distinguish reality from fiction and therefore, the statements are inherently untrustworthy.
The State argues, and testimony heard by this Court supports that at the time the victim was oriented, responsive and coherent. The victim had conversations with his wife about paying bills and the upcoming birth of their child. Detective Bramble testified that during his two interviews with the victim, he appeared to be oriented, responsive, and both statements were consistent. The State further argues that his medical condition did not affect the veracity of his statements because the victim had no motive to falsely accuse anyone of the crime.
The defendants attack the method in which the statements were taken. The statement to the victim's wife was after the victim was removed from a ventilator, and the statements to the police were taken just before surgical procedures. Detective Bramble did not record the statements and did not offer a photo lineup to the victim for identification of the suspects. The defendants point to these actions by the police as showing a lack of trust in the reliability of the statements by Detective Bramble, the Court does not agree.
The Court finds that the victim was in critical condition, in extreme pain and under the influence of medication. While there was testimony that the victim was coherent, oriented and responsive, there was also testimony that the victim suffered from nightmares and hallucinations. There is testimony that over the course of his hospitalization he discussed the case with numerous people. The Court finds that these facts together raise doubt as to the reliability of the victim's statements as coming from his unaided memory. The State has not met its burden of showing the reliability and trustworthiness of the statements and absent a showing of particularized guarantees of trustworthiness, the Court must exclude these statements as depriving the defendants of their Constitutional right to be confronted with the witnesses against them.
Under the circumstances of this case, the Court finds that the victim's statements do not have sufficient indicia of reliability or sufficient circumstantial guarantees of trustworthiness equivalent to the firmly rooted hearsay exceptions to overcome the presumption against admissibility.
CONCLUSION
Based upon the foregoing, the defendants' motion in limine to exclude the statements of the deceased victim is GRANTED.
The Honorable Richard S. Gebelein