Jason A. YOUNG, Appellant (Plaintiff),
v.
HAC, LLC d/b/a Benham’s, Appellee (Defendant).
No. 00–187. | May 31, 2001.
Frank R. Chapman
and Thomas A. Valdez
of Beech Street Law Office, Casper, WY, for Appellant.
Patrick T. Holscher of Schwartz, Bon, Walker & Studer, Casper,
WY, for Appellee.
[¶ 1] In this personal
injury action, Appellant Jason A. Young (Young) alleged Appellee HAC, LLC (HAC),
negligently caused the personal injuries that Young suffered when assaulted by
another customer while both patronized HAC’s business. A jury returned a
verdict finding that HAC was not negligent. During trial, Young had attempted
to enter into evidence the sworn statement of the customer who had assaulted
Young and caused his injuries. Young appeals the jury verdict alleging that the
trial court erred when it ruled that the assaulting customer’s sworn statement
was hearsay that was inadmissible as a statement against interest, W.R.E. 804(b)(3),
or under the catchall exception, W.R.E. 804(b)(6).
We hold that the trial court did not err in ruling the sworn statement
inadmissible.
[¶ 2] Young presents this
sole issue for our review:
1. Did the District Court commit reversible error by barring the
sworn statement of Travis Kidd to be admitted into evidence as an exception to
the hearsay rule?
HAC believes the issue is:
Is a sworn statement by an assailant admissible in its entirety
under W.R.E. 804(b)(3)
or W.R.E. 804(b)(6)
when that assailant has already been sentenced for the assault and when the
party taking the statement intentionally chooses not to preserve the
assailant’s testimony for trial through a deposition?
FACTS
[¶ 3] HAC operates a restaurant
and tavern called Benhams. On February 18, 1995, Young and friends were at
Benhams to hear a band. Travis Kidd was also there with his girlfriend and
friends. Kidd, apparently upset with his girlfriend, was disruptive, abusive,
and threatening. After telling his group that he was going to hit the next
person that walked by, Kidd attacked Young as Young walked by on his way out of
the establishment, severely injuring him. Kidd was charged with and sentenced
for aggravated assault.
[¶ 4] On March 7, 1997,
Young filed suit against HAC, and HAC filed cross-claims against Kidd. Trial
was set for May 24, 1999. HAC’s suit against Kidd was dismissed in January of
1998. Kidd gave a sworn statement to Young’s attorney on July 8, 1997. Although
Kidd’s attorney was present during the making of the sworn statement, HAC’s
attorney had not been notified and was not present. The civil trial was
rescheduled for March 13, 2000, and on February 24, 2000, Young issued a trial
subpoena for Kidd. Kidd could not be located, and the subpoena was not served.
[¶ 5] On March 10, 2000,
Young notified HAC that Kidd was unavailable as a witness and Young intended to
read Kidd’s sworn statement into evidence at trial. HAC objected, and, on March
14, after trial had begun, the trial court heard oral arguments on the issue.
Ruling from the bench, the court analyzed the application of W.R.E. 804(b)(3)
and (6), and found it relevant that Young had failed to take Kidd’s
deposition. The trial court denied admission of the sworn statement. The jury
returned a verdict finding HAC had not been negligent. This appeal followed.
DISCUSSION
Standard of Review
(a) Definition of unavailability.—“Unavailability as a
witness” includes situations in which the declarant:
* * * *
(5) Is absent from the hearing and the proponent of his statement
has been unable to procure his attendance by process or other reasonable means.
* * * *
*1145 (b)
Hearsay exceptions.—The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:
* * * *
(3) Statement Against Interest.—A statement which was at the time
of its making so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject him to civil or criminal liability, or to
render invalid a claim by him against another, that a reasonable man in his
position would not have made the statement unless he believed it to be true. A
statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
* * * *
(6) Other Exceptions.—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. However, a statement may not be admitted under this exception unless
the proponent of it makes known to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, his intention to offer the statement and the particulars of
it, including the name and address of the declarant.
[¶ 8] Young contends that
the trial court abused its discretion when it failed to consider Kidd’s
exposure to civil liability when assessing the evidence as a statement against
interest and when it decided that the statement did not meet the
trustworthiness requirements of W.R.E. 804(b)(6),
the catchall exception. HAC contends that although the court properly ruled on
the merits, Young’s failure to depose Kidd precludes admission of a sworn
statement that has not been subject to cross-examination. We first address W.R.E. 804’s
availability requirement.
A.
Availability
[¶ 9] Compliance with W.R.E. 804(a)
is required before the hearsay exceptions of W.R.E. 804(b)
can be applied. We will not determine if the substantive requirements of W.R.E. 804(b)
were met, unless the threshold eligibility of the unavailability request is
demonstrated. Williams v. Collins
Communications, Inc., 720 P.2d 880, 886 (Wyo.1986). In its ruling
from the bench, the trial court did not decide whether Young’s attempts to
subpoena Kidd complied with W.R.E. 804(a),
and, because we affirm on other grounds, we need not consider the issue on our
own. The trial court did consider Young’s failure to depose Kidd as a factor
that weighed against admitting the sworn statement under either of the two
exceptions.
[4] [¶ 10] Under the federal rules, an
obligation to obtain a deposition exists pursuant to F.R.E 804(a)(5),
which states:
(a) Definition of unavailability. “Unavailability as a
witness” includes situations in which the declarant-
* * * *
(5) is absent from the hearing and the proponent of a statement
has been unable to procure the declarant’s attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s
attendance or testimony) by process or other reasonable
means.
(emphasis added). See also United States v.
Olafson, 213 F.3d 435, 442 n. 3 (9th Cir.2000). Federal courts
interpret the emphasized phrase as requiring an attempt to depose a witness, or
the court will not find the witness is unavailable and consider admission under
the the exceptions in subdivision (b)(2), (3), or (4). Under Wyoming’s rules, W.R.E. 804(a)(5)
no longer includes this phrase, and we need not consider whether Young had an
obligation to depose Kidd before attempting to introduce his statement under W.R.E. 804(b)(3).
We agree, however, that the lack of opportunity for cross-examination such as
would have been available by deposition may *1146
be a factor the trial court can properly consider for admitting statements
under the catchall exception, W.R.E. 804(b)(6).
Although deposition testimony is also considered hearsay, it may be admissible
under either the rules of civil procedure or W.R.E. 804(b)(1).
Brown, 954 P.2d at 1351.
[5] [¶ 11] Hearsay is defined as “a statement,
other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” W.R.E. 801(c).
A “statement” is an oral or written assertion or nonverbal conduct intended as
an assertion. W.R.E. 801(a).
The word “statement” means “a single declaration or remark,” rather than “a
report or narrative,” so that when ruling on the admissibility of a narrative,
we must break down the narrative and determine the separate admissibility of
each “single declaration or remark.” State v. Phillips, 194 W.Va. 569, 461
S.E.2d 75, 91 (1995); see Williamson v.
United States, 512 U.S. 594, 114 S.Ct. 2431, 2434–35, 129 L.Ed.2d 476
(1994) (discussing hearsay in the context of F.R.E. 804(b)(3)
exception for statements against interest).
[6] [¶ 12] Here, Young presented Kidd’s
lengthy sworn statement to be read into evidence, and the trial court
determined that because it contained a number of statements describing what
other people believed and saw, it was inadmissible for lack of foundation. Our
review indicates that the record supports the trial court’s view that nearly
all of the sworn statement, which is well over twenty-five pages, primarily
consists of statements that are not statements against interest, but are
inadmissible narrative.
[¶ 13] Considering the
admissibility of each “single declaration or remark” as we must, we do see that
Kidd admits that he assaulted Young; however, as Young acknowledges, Kidd
admitted it after he had been tried and convicted for that crime. Consequently,
the only liability at stake was civil liability. Young contends that the HAC’s
pending cross-claim against Kidd qualifies the entire statement as admissible
as a statement against interest. HAC contends that Kidd, having already
admitted to criminal liability, which then became a matter of public record,
did not increase his civil liability, but, instead, was actually attempting to
enter an exculpatory statement. See Johnson v. State, 930 P.2d 358
(Wyo.1996).
[¶ 14] The record shows that
the trial court received and considered written memorandum supporting each
parties’ arguments and heard oral argument. Having considered written and oral
argument, the trial court determined that the sworn statement was not a
statement against interest and ruled it was inadmissible hearsay. Our review
indicates that the record supports the decision to exclude the entire sworn
statement. Although a single statement within the entire statement was an
admission that he attacked Young, Kidd provided the entire statement to
exculpate himself from liability, and it is not admissible under W.R.E. 804(b)(3),
the statement against interest exception.
[7] [8] [¶ 15] Young contends that this statement
met all requirements for admission. HAC contends that Young failed to give HAC
adequate notice that it intended to introduce the statement under this
exception, failed to prove unavailability, and the trial court properly ruled
the sworn statement did not possess circumstantial guarantees of
trustworthiness. We have identified the following as requirements for admission
under W.R.E. 804(b)(6):
First, the declarant must be unavailable. Second, the adverse
party must either have been given pretrial notice or a sufficient opportunity
to prepare for and contest the admission of the hearsay. Third, the truth of
the matter asserted must be evidence of a material fact. Fourth, the hearsay
statement must be more probative than any other evidence which could be
procured through reasonable efforts. Fifth, and finally, the statement must be
supported by circumstantial guarantees of *1147
trustworthiness; this may be established either through other corroborating
evidence or by considering the motivation and/or behavior pattern of the
declarant.
[¶ 16] The record shows that
the trial court did not admit this statement because of insufficient notice,
and decided it failed trustworthiness requirements. Because our review of the
sworn statement indicates that it was neither worthy of trust nor necessary to
effectuate justice, we need not decide whether the trial court properly decided
the notice issue.
[9] [¶ 17] W.R.E. 804(b)(6)
applies only in rare and exceptional circumstances. Here, the trial court was
concerned about the lack of opportunity to cross-examine a hearsay statement
that lacked foundation for its numerous statements about what other people saw
and what Kidd believed HAC employees knew and had seen. It properly considered
that Kidd was available for a deposition that would have provided the
opportunity for cross-examination, and we would note that if Kidd’s testimony
was crucial to this case, Young should have deposed him. These factors are
sufficient reason to deny admission. We find no abuse of discretion.
[¶ 18] We affirm the trial
court’s decision to exclude Kidd’s sworn statement.
