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No. 35339 -State of West Virginia v. Richard Lewis Morris
Ketchum, J., dissenting:
I respectfully dissent. The hearsay testimony of Officer Tiong plainly went to
the very heart of the State's case against the defendant, and was an error of constitutional
dimension that deprived the defendant of a fair trial.
The primary factual dispute in the defendant's trial was whether or not the
defendant was driving the vehicle at the time of the crash. The defendant contended that he
was not the driver. To buttress its case that the defendant was the driver, and that the
defendant was therefore guilty of DUI causing death, the prosecutor asked Officer Tiong, one
of the investigating police officers, why the defendant had been arrested for driving the
vehicle. The officer testified that he had received information from the nurse from marks
she observed [on the defendant]. The prosecutor then asked the police officer What kind
of marks? to which the officer testified that [the nurse] observed that there was what
appeared to be seat belt marks going up the left area down to the lower right area which
showed the possibility of wearing a seat belt in the driver's side.
The defendant strenuously objected to the officer's testimony as hearsay. In
response to the objection, the prosecutor told the judge that the officer's testimony regarding
the nurse's statements to him were not hearsay because the nurse who made the statements
would personally testify at trial. (See footnote 1)
The prosecutor's assurance that the nurse would testify
later in the trial was obviously offered to give the trial court the impression that any risks
inherent in the officer's hearsay testimony would be ameliorated by the fact that the declarant
of the hearsay statement was to appear at trial and be subject to cross-examination. See State
v. Jessica Jane M
., ___ W.Va. ___, ___, ___ S.E.2d ___, ___ (No. 35441, September 16,
2010) (Slip Op. at 13) (the declarant's later appearance at trial ameliorates any hearsay or
The prosecutor's assurances to the trial court were, however, little more than
testimonial legerdemain, i.e., notwithstanding the prosecutor's assurances to the trial court
that the nurse would testify, the nurse never appeared or testified at trial. Consequently, the
defendant could not ask the nurse if she made the statement to the police officer, much less
cross examine the nurse on the accuracy of her observations.
The State now argues, in its brief on appeal, that the nurse was under subpoena
to testify at the trial, but defied that subpoena by not appearing. However, there is no
evidence of this in the record and no evidence that the prosecutor made any real effort to
secure this witness's testimony. There is no evidence showing the prosecutor checked with
the witness as to her trial appearance, or checked the morning that the trial began as to her
attendance. If the prosecutor assures a trial judge that a witness will testify, then the
prosecutor has a duty to present the witness. The admission of the nurse's hearsay statement
is not an instance concerning the introduction of a relatively harmless matter, but instead
went to the very core of a key issue in dispute.
Why would a jury only deciding guilt or innocence need to know why the
police arrested the defendant? Why the police officer arrested the defendant was not relevant
to any issue in the case. The jury's sole duty was to decide whether the defendant was the
driver of a vehicle at a time when he was legally impaired and, if so, whether the defendant's
drunk driving caused the death of another person. In other words, the reasons why the police
officer arrested the defendant had no bearing on defendant's guilt or innocence.
The only valid reason for asking a police officer why he arrested a person is
to establish probable cause for the arrest. Probable cause is decided by the court out of the
presence of the jury, or by a Grand Jury. The petit jury only decides guilt or innocence, not
whether the police officer had probable cause to arrest the defendant in the first instance.
One of our leading cases addressing hearsay issues that arise when police
officers testify as to the background of their investigations is State v. Maynard, 183 W.Va.
1, 393 S.E.2d 221 (1990). In Maynard, Justice Workman, writing for an unanimous Court,
correctly noted that evidence as to why a defendant became a suspect is not admissible
because it is not relevant to a fact of consequence in a criminal trial. Id., 183 W.Va. at 5, 393
S.E.2d at 225.
Justice Workman recognized in Maynard that an appellate court can find this
type of hearsay, even if improperly admitted, to be harmless error. As a general proposition,
I agree with that conclusion. However, I strongly disagree with that conclusion where
in the case before us - the hearsay goes to the very heart of a much contested issue in the
trial. In such instance it cannot be harmless. The mere fact that a co-defendant
- who may
have been the drunk driver, and who received a very favorable plea deal to testify against this
defendant- testified that the defendant was the driver does not make it any less harmless,
because that co-defendant's testimony is suspect as a result of the plea deal and a desire to
not be held accountable as the driver of the vehicle. Similarly, the fact that a lab technician
drawing blood also testified that he saw bruising on the defendant does not make it any less
harmful that the out-of-court statements of a nurse - a medical professional
introduced saying that the defendant's bruising was left to right, and indicated a driver's side
While the majority opinion finds this testimony harmless, I would not. Why
the police officer arrested the defendant was not an issue for the jury, it was not relevant to
any issue being presented to the jury, and it was highly prejudicial to the defendant's case.
The Hearsay Rule Needs Modification
I believe that this Court needs to revisit our hearsay rule. We frequently see
cases coming before this Court where a prosecutor has thwarted a defendant's right to
confront a witness or to receive a fair trial by introducing hearsay statements. Even when an
objection is made, the prosecutor falls back on the time-proven exception and tells the trial
judge, Oh, we are not offering this statement to prove the truth of the matter asserted. This
is more or less a wink-and-a-nod type argument, and it needs to be stopped. It appears that
other jurisdictions are putting a stop to this type of testimony. An excellent article discussing
police officers testifying as to why they arrested a defendant is Arresting Officers and
Treating Physicians: When May a Witness Testify to What Others Told Him for the Purpose
of Explaining his Conduct?
, 18 Regent Univ. L. Rev. 229 (2006). (See footnote 2)
The article points out that
leading authorities on evidence note that allowing a police officer to testify as to
incriminating hearsay statements of other persons leading to his decision to arrest the
defendant is usually an abuse of discretion. The need for this evidence is slight, and the
likelihood of misuse great. See also, John W. Strong, et al, McCormick on Evidence
Section 249 (5th
We should restrict the hearsay testimony of a police officer regarding why he
arrested the defendant by limiting the officer's testimony to a more simple statement such
as on information received, I arrested the defendant without allowing the officer to repeat
the content of any incriminating hearsay statements that may have formed a basis for the
officer's decision to make an arrest. See, Statements of Bystanders to Police Officers
Containing An Accusation of Criminal Conduct Offered to Explain Subsequent Police
Conduct, 55 U. Miami L. Rev. 771 (2001). Other courts limiting an officer's testimony have
recognized that the out-of-court statement inferring the defendant's guilt is classic hearsay, Id., at 10, [w]hen the only possible relevance of an out-of-court statement is directed to the
truth of the matters stated by a declarant, the subject matter is classic hearsay even though
the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. Keen
v. State, 775 So. 2d 263, 273 (2000). See also, United States v. Silva, 380 F.3d 1018, 1020
(7th Cir.2004) (notwithstanding arguments of prosecutor, police officer's hearsay statements
could not have been relevant to any issue other than their truth); People v. Warlick, 707
N.E.2d 214 (Ill. Ct. App. 1998).
The time has come for prosecutors to present live witnesses rather than non-
rebuttable incriminating hearsay testimony. Some prosecutors may take pride in their slight
of hand tactics; however, it not only violates a defendant's constitutional rights to confront
his or her accusers and to receive a fair trial, but it will lead to innocent people being found
guilty of crimes they did not commit. My philosophy on criminal trials is straight-forward.
Try a defendant with witnesses who have first-hand knowledge, not with irrebuttable hearsay
testimony. It will force prosecutors to work harder in determining the real facts rather than
relying on the police to convict with hearsay. Prosecutors should prepare for trial and present
witnesses with first hand knowledge. Evidence presented to a jury by prestidigitation only
serves to undermine the fairness of our jury system.
For these reasons, I respectfully dissent.
On appeal, the State also argues for the first time that the officer's testimony
repeating the nurse's out-of court statement was not hearsay because it had not been offered
to prove the truth of the matter asserted. The State now contends the incriminating statement
was only offered to show the officer's reason for arresting the defendant.
For a more detailed review of how some other jurisdictions are addressing the issues,
see footnotes 6 and 7 of the article, where the article's author cites many appellant courts
which hold that it is error for a police officer, in explaining why a defendant was arrested,
to testify about the details of incriminating hearsay statements.