Metropolitan News-Enterprise


Thursday, December 11, 2003


Page 3


C.A.: Competency No Foundation for Admitting Elder Abuse Hearsay


By DAVID WATSON, Staff Writer


The fact that an alleged elder abuse victim was competent at the time he gave videotaped testimony is an inadequate foundation for admission under a special hearsay exception enacted in 1999, the First District Court of Appeal ruled yesterday.

In an opinion certified for partial publication, Div. Three rejected a constitutional challenge to the hearsay exception statute, Evidence Code Sec. 1380.

The section permits admission of the statement of an unavailable alleged victim in a prosecution for elder abuse if it was videotaped by a law enforcement official prior to the death or disability of the victim, who must have been at least 65 years of age or a dependent adult when the claimed violation occurred.  Corroborating evidence is required and there must be no evidence that the prosecution was responsible for the unavailability of the witness.

The law also specifies that the statement is admissible only if “[t]he party offering the statement has made a showing of particularized guarantees of trustworthiness regarding the statement, the statement was made under circumstances which indicate its trustworthiness, and the statement was not the result of promise, inducement, threat, or coercion.”

Alameda Superior Court Judge Julie Conger permitted introduction of a videotape account by Thomas Means of his relations with Louis Ray Watson, who was charged with taking money from Means under the false pretence that he was performing improvements on Means’ home. At the time of trial Means was suffering from advanced dementia and could not testify.

Writing for the appellate panel, Justice Stuart Pollak said Conger erred in finding that the “particularized guarantees” portion of the law was satisfied by evidence establishing Means was competent at the time his statement was recorded by a district attorney investigator. Competency alone satisfied neither the statutory requirements nor those of the Sixth Amendment, he said.

“Under both section 1380 and Idaho v. Wright[(1990) 497 U.S. 805],” the justice explained, “the burden was on the prosecutor to rebut the presumption that Means’s statements were untrustworthy by demonstrating that ‘the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.’”

He continued:

“Here, the prosecutor failed to make any showing beyond competency....More is required than the perception from viewing the videotape that the witness seems credible and does not appear to be testifying falsely. While we note that in the main the questions put to Means during the interview were not leading and agree that there are no indications on the tape that he was lying, it cannot be said that he was without any motive to stretch or twist the facts. At a minimum, Means paid a significant amount for substandard work.  Animosity, resentment or a desire to shift responsibility to the other party would not be unusual under such circumstances, and a criminal conviction might give rise to restitution....These circumstances surrounding the making of the statements that were videotaped hardly provide assurance of their trustworthiness. Neither the prosecutor, the Attorney General nor the trial judge pointed to any other circumstances indicating that Means’s recitation of events that occurred eight months earlier was necessarily accurate, or that cross-examination was not likely to have been of value.”

The erroneous admission of the videotaped evidence required reversal of Watson’s convictions of those counts to which it related, Pollak declared, but he rejected the defendant’s claim the law was unconstitutional.

Pollak said he was “not persuaded by the reasoning” of the Florida Supreme Court, which invalidated a similar statue on constitutional grounds in Conner v. State (Fla. 1999) 748 So.2d 950.

Justice Carol Corrigan and Presiding Justice William R. McGuiness concurred.

The case is People v. Watson, A098183.


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