Where a trial court finds that a witness is feigning lack of memory of the underlying events described in prior sworn testimony, the witness's prior testimony is admissible as inconsistent under Minn. R. Evid. 801(d)(1)(A) if the witness testifies and is subject to cross-examination concerning the prior sworn testimony.
Heard, considered and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Russell A., Justice
Appellant Robyn Keith Amos, Sr. was found guilty by a jury of aiding and abetting a drive-by shooting, in violation of Minn. Stat. § 609.66, subd. 1e (2002), and Minn. Stat. § 609.05 (2002), and was sentenced by the trial court to a 78-month prison term. The court of appeals affirmed the conviction against claims by appellant that the evidence was legally insufficient and that the trial court had abused its discretion in the admission of prior testimony. We granted review solely to consider the trial court's evidentiary ruling. Concluding that the admission of prior testimony was proper where the witness feigned a lack of recall of the underlying events described in the prior testimony, the witness was present and testifying at trial, and the witness was subject to cross-examination concerning the prior testimony, we affirm.
To place the evidentiary ruling in context, a brief factual summary is necessary. Appellant Robyn Keith Amos, Sr. is the father of Robyn Keith Amos, Jr. and Melissa Moe. On October 14, 2000, Moe was involved in a fistfight with Laura Jackson, Amos Sr.'s friend, at the home of Dawn Hayes. Police were called, restored order and left without making any arrests. Later that day, again at the Hayes residence, Moe and another person known as P.J. fought over Jackson's missing wedding band. Jackson had removed her jewelry before the fight with Moe, and Moe had been told that P.J. had the missing item. Moe struck P.J. with a large flashlight, and P.J. reciprocated by hitting Moe with an ironing board. Police were again called, and P.J. was taken to a hospital. Later that same day, Amos Sr. called the Hayes residence and told Hayes that "[Jackson's] rings had better show up or some shit is going to go down." Amos, Jr. also called, telling Hayes: "[the rings] needed to show back up," or "some shit's going to go down."
Shortly after that phone conversation, Hayes' mother looked out the door to see if her grandchildren were outside. She saw a burgundy or red car moving slowly down the street. She recognized Amos, Sr. as the driver, Amos, Jr. as a passenger, and saw a third unidentified person in the rear seat. She closed the door. Shortly afterwards, as she was sitting on the couch, she heard a series of gunshots from the back of the house. A neighbor living across the alley saw a burgundy or maroon car move slowly down the alley behind the Hayes residence two or three times and after the last pass heard shots fired in the vicinity of the Hayes residence.
Police were called. One of the responding officers was directed by Moe and Hayes to the back of the residence where he discovered bullet holes in the fence between the alley and the residence and bullet holes in the side of the residence itself. Police collected 15 discharged shell casings in the alley. Another officer patrolling nearby heard the description of the vehicle and pulled over a maroon Cadillac Eldorado with three people in the car, one of whom was identified as Amos, Sr. In the ensuing investigation, police recovered a nine-millimeter TEC-9 semiautomatic handgun that ballistics experts determined had fired at least two shell casings found in the alley behind the Hayes residence. Amos, Sr. was charged with aiding and abetting a drive-by shooting and Amos, Jr. was charged with a drive-by shooting, a charge later amended to aiding and abetting.
Amos, Jr. was tried first. At Amos, Jr.'s trial, Moe testified that she saw Amos, Sr.'s car behind the Hayes residence before the shooting and that Amos, Jr. was a passenger in the vehicle. State v. Amos, No. C4-01-713, 2002 WL 418369, at *2 (Minn. App. Mar. 19, 2002). She identified the TEC-9 semiautomatic handgun as Amos, Jr.'s gun, and she testified that Amos, Jr. kept the gun under his bed. Two weeks later, at Amos, Sr.'s trial, Moe recalled the fight with Jackson but recalled nothing further about the day of the shooting incident, stating that she was confused and emotional. She remembered testifying at her brother's trial and acknowledged that she had tried to be truthful then, "as much as [she could] remember." When efforts to refresh Moe's recollection failed, the court excused the jury and allowed argument concerning the admissibility of Moe's prior testimony. The court found from its observation of the state's questioning of Moe that she had feigned a lack of memory and, over Amos, Sr.'s objection, allowed the use of Moe's prior testimony as an inconsistent statement under Minn. R. Evid. 801(d)(1)(A).
The jury found Amos, Sr. guilty as charged, and he received the 78-month presumptive sentence. The court of appeals affirmed, rejecting claims that the trial court's evidentiary ruling admitting Moe's prior testimony as substantive evidence was improper under Rule 801(d)(1)(A) and that the evidence was insufficient for conviction. State v. Amos, No. C1-01-1172, 2002 WL 523185, at *1 (Minn. App. Apr. 9, 2002). As indicated, we granted review of the evidentiary ruling.
Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990). On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).
Amos, Sr. argues that Moe's prior testimony does not qualify as inconsistent statements under Minn R. Evid. 801(d)(1)(A) because her lack of memory was not inconsistent with her prior testimony at Amos, Jr.'s trial. Amos, Sr. further argues that this lack of memory made Moe "unavailable," in which case her prior testimony would have been admissible, if at all, under Minn. R. Evid. 804(b)(1), an exception to the hearsay rule for former testimony in a retrial of the same defendant. Rule 801(d)(1)(A) provides, in relevant part, that a prior statement made by a witness is not hearsay if the prior statement was given under oath and subject to the penalty of perjury at an earlier trial, and if the witness is now testifying and is subject to cross-examination concerning the prior statement, and the prior statement is inconsistent with the witness's present testimony.*fn1 Rule 804(b)(1) excepts certain hearsay statements from the hearsay rule and provides that in a criminal proceeding involving the retrial of a defendant for the same or an included offense, witness testimony from the previous trial is not excluded if the witness is unavailable.*fn2 Rule 804(a)(3) defines unavailability of a witness to include situations in which the witness testifies to a lack of memory of the subject matter of the witness's statement.*fn3 But if the trial court disbelieves the witness who claims a lack of memory, finding that unavailability is not established, "the extra-judicial statement might be admissible as a prior inconsistent statement if the requirements of Rule 801(d)(1)(A) are met." 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §á804.03(4)(b), at 804-15 (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2003).
To qualify as non-hearsay, a prior sworn statement must be inconsistent with the declarant's trial testimony. Minn. R. Evid. 801(d)(1)(A). Because Minnesota's Rules 801(d)(1)(A) and 804(b)(1) closely resemble their federal counterparts, we have looked to federal case law for guidance. See, e.g., State v. Dukes, 544 N.W.2d 13, 19 (Minn. 1996). We note that the federal courts do not limit the meaning of the word "inconsistent" in Fed. R. Evid. 801(d)(1)(A) to statements that are "'diametrically opposed or logically incompatible'" with each other. United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir. 1985) (quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984)). Federal courts generally agree that a feigned loss of memory regarding prior testimony is inconsistent and the prior testimony is admissible as non-hearsay under Rule 801(d)(1)(A). See, e.g., United States v. Murphy, 696 F.2d 282, 283-84 (4th Cir. 1982); United States v. Bigham, 812 F.2d 943, 947 (5th Cir. 1987) (stating that a reluctant witness's memory loss at trial was "convenient," and prior testimony was admissible under Fed. R. Evid. 801(d)(1)(A)); DiCaro, 772 F.2d at 1321-22 (concluding that a witness's claimed lack of recollection is sufficient to satisfy inconsistency requirement of Rule 801(d)(1)(A)); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) ("[The witness's] statement on the stand that he could not recall having any contact with [the defendant] around the time he cashed the forged postal money orders is sufficiently inconsistent with his grand jury testimony for the trial court to admit the previous testimony [under Rule 801(d)(1)(A)]."). In support of admitting prior testimony upon a finding of a subsequent feigned lack of ...