Monday, November 10, 2008

Too Much Hearsay

In several recent posts, I’ve explained what hearsay is and written about how courts apply the exceptions to the rule . . . exceptions that let certain types of hearsay be admitted into evidence.

This post is about a case in which the prosecution admitted too much hearsay into evidence, which led to the reversal of a murder conviction.

The case is Thomas v. State, 2008 WL 4629572 (Florida Court of Appeals 2008). Here’s how the Court of Appeals summarized the facts and what happened at trial:
Chaka Baldwin, [Steven]Thomas's girlfriend of four years, was stabbed to death. No physical evidence tied him to the crime, but the State presented circumstantial evidence in support of its contention that Mr. Thomas was the murderer. One piece of circumstantial evidence was an email written by Natalie Zepp to Michelle McCord, both employees of the apartment complex where Ms. Baldwin and Mr. Thomas shared an apartment. Defense counsel made hearsay objections, not only to the introduction of the email as a whole, but also to the introduction of statements within the email that Ms. Zepp, the employee who wrote the email, reported Ms. Baldwin made to her.
Thomas v. State, supra.
Here’s the text of that email:
This resident called and says that she's had someone (Steven Thomas) living in her ap[artmen]t for the past year that is not on the lease and now she wants him out but he refuses to leave. What can we do? [H]er number is (754)2241958, but I asked that she call you back tomorrow morning as well.
Thomas v. State, supra. The italicized portions of the email are the parts the defense particularly objected to, as being inadmissible hearsay. The rest of the email consists of statements describing matters of which Ms. Zepp had first-hand knowledge and could, had the prosecution so desired, have testified to those matters at trial. These portions of the email did, and could, come in under the business records exception to the hearsay rule, which I wrote about in an earlier post. As the Court of Appeals explained,
Michelle McCord, the recipient of the email, testified that one of her duties as the property manager of Campus Walk Apartments was to keep track of records pertaining to the individual apartments. She inspected the email written by Ms. Zepp, and testified that it was a record kept in the ordinary course of business at Campus Walk Apartments. She testified that the record was made at or near the time the information it contained was provided by a person with knowledge. Finally, she testified it was a regular practice of Campus Walk Apartments to keep records such as the email. . . . After the trial judge determined that `clearly this email is within the firsthand knowledge of Ms. Zepp’ and `it's clearly within her duty to try to assist tenants,’ the trial judge ruled: `assuming the other requirements for the business record are met, I will admit that part of the record.’
Thomas v. State, supra.

The defense strongly objected to the inclusion of the underlined statements, arguing that “Ms. Baldwin's statement [to Ms. Zepp] constituted a separate layer of hearsay -- hearsay within hearsay-which could not come in without qualifying under an exception of its own.” Thomas v. State, supra. In making that argument, the defense relied on a Florida statute which says “[h]earsay within hearsay is not excluded . . . provided each part of the combined statements conforms with an exception to the hearsay rule”. Florida Statutes § 90.805.

According to the defense, while the rest of the email could come in under the business records exception, the underlined statements could not; the only way they could come in, the defense said, was if another exception to the hearsay rule applied to these statements . . . and it did not. The prosecution argued that all of the information in the email was “within the personal knowledge of Ms. Zepp”, so it did not constitute hearsay within hearsay. Thomas v. State, supra.

The Court of Appeals agreed with the defense: “The trial court erred in admitting the underlined portions of the email. While the employee who wrote the email had firsthand knowledge of Ms. Baldwin's desire to evict -- and could presumably . . . have so testified -- there was no evidence that she had personal knowledge of any of the surrounding circumstances.” Thomas v. State, supra. That is, there was no evidence showing she had personal knowledge of the relationship and living arrangements between Ms. Baldwin and Mr. Stevens and whether he was refusing to leave her apartment. As the Court of Appeals explained, the email contained two levels of hearsay:
The email is itself hearsay because it is an out-of-court statement being offered for the truth of the matters asserted. . . . It is Ms. Zepp's account of what Ms. Baldwin told her. Its accuracy depends both on Ms. Zepp's veracity and on Ms. Baldwin's veracity. Within the email -- the first tier of hearsay -- lies another layer of hearsay: the statement made by Ms. Baldwin to Ms. Zepp, viz., `that she's had someone (Steven Thomas) living in her ap[artmen]t for the past year that is not on the lease and . . . refuses to leave.’ There was no evidence Ms. Zepp had firsthand knowledge of these matters. Rather, her `knowledge’ that Ms. Baldwin `had someone (Steven Thomas) living in her ap[artmen]t for the past year . . . and . . . refuses to leave’ was hearsay. She was recounting statements she said she heard Ms. Baldwin make. Ms. Baldwin's statements were not . . . business records themselves. As recounted by Ms. Zepp, they were not admissible, because they did not qualify for an exception to the hearsay rule in their own right.
Thomas v. State, supra.

The Court of Appeals not only found that the admission of the email was error, it also found that it constituted reversible error, i.e., error requiring the reversal of Thomas’ murder conviction:
The hearsay was used . . . to prove motive, a critical component of the State's case, a case that relied solely on circumstantial evidence. The State used hearsay to show a possible reason for Mr. Thomas's wanting to kill his live-in girlfriend of four years. No other evidence tended to show that Ms. Baldwin had asked him to move out and that he had refused to leave.

Not even Ms. Baldwin's `best friend[ ] . . . testified . . . to any problems in the couple's relationship. In fact, the best friend testified she was scheduled to take Mr. Thomas to an appointment the morning after Ms. Baldwin was murdered. The State's . . . argument on appeal rings hollow against the background of its argument to the jury emphasizing that Ms. Baldwin wanted Mr. Thomas to move out but he refused, thus making the hearsay `a feature of its . . .closing argument.’ . . . Because there is a reasonable possibility that admission of Ms. Baldwin's hearsay statement that `[Mr. Thomas] refuses to leave’ contributed to Mr. Thomas's conviction, we are constrained to reverse for a new trial.
Thomas v. State, supra.

This decision issued on October 21, 2008, so there obviously has not been time for a new trial. From what the court says about the evidence the prosecution relied on in this trial, it sounds as if the loss of these parts of Ms. Zepp’s email may make it difficult for the prosecution to get a conviction if it tries again.

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