Washington v. Kelsey


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Docket Number: 2006-CA-01552-COA
Linked Case(s): 2006-CA-01552-COA
Court of Appeals: Opinion Link
Opinion Date: 04-22-2008
Opinion Author: CARLTON, J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Personal injury - Hearsay - M.R.E. 801(c) - M.R.E. 803 - M.R.E. 804 - M.R.E. 404(b) - Deposition testimony - M.R.C.P. 32(a)(3) - M.R.E. 804(b)(1) - M.R.E. 103
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - PERSONAL INJURY
Trial Court: Date of Trial Judgment: 05-23-2006
Appealed from: Leake County Circuit Court
Judge: Marcus D. Gordon
Disposition: JURY VERDICT IN FAVOR OF DEFENDANT KELSEY
Case Number: 01-CV-062-LE
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: DAVID WASHINGTON




 JAMES C. PATTON



  
  • Appellant #1 Brief
    		•
    Appellee: MARIAN L. KELSEY WILLIAM M. DALEHITE, JAMES SETH MCCOY  
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    Topic: Personal injury - Hearsay - M.R.E. 801(c) - M.R.E. 803 - M.R.E. 804 - M.R.E. 404(b) - Deposition testimony - M.R.C.P. 32(a)(3) - M.R.E. 804(b)(1) - M.R.E. 103
    Summary of the Facts: David Washington and Marian Kelsey were involved in an automobile accident. At trial, Washington and Kelsey each testified that the other was completely at fault. At the conclusion of trial, the jury returned a verdict in favor of Kelsey. Washington appeals.
    Summary of Opinion Analysis: Washington argues that his case was prejudiced by the introduction of hearsay testimony regarding prior instances of speeding. He argues that the trial judge erred in allowing Kelsey to testify as to the statement a witness made at the scene of the accident and admitting the deposition testimony of the witness. On direct-examination, Kelsey was allowed to testify that she heard the witness state at the scene of the accident that “he had told [Washington] before that he needed to slow down because he was going to get somebody hurt.” Under M.R.E. 801(c), hearsay is 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. A hearsay statement is inadmissible unless the statement fits within an exception provided for in M.R.E. 803 or 804. In this case, the statement of the witness was inadmissable hearsay. The statement was made out-of-court, and Kelsey was not the declarant. Moreover, Kelsey cites no hearsay exception that would render the statement admissible. In addition, this testimony was admitted in violation of M.R.E. 404(b) as evidence of a prior act of speeding offered to show that Washington acted in conformity therewith. The statement was clearly offered to create the inference that, because Washington had sped in the past, he was speeding on the day of the accident. Therefore, the trial court erred in allowing this evidence. With regard to the deposition of the witness, Washington argues that Kelsey made no showing that the deponent was unavailable to testify at trial as a witness. M.R.C.P. 32(a)(3) provides that all or part of a deposition may be used for any purpose at trial in certain circumstances. Similarly, M.R.E. 804(b)(1) provides that deposition testimony is excepted from the hearsay rule and admissible if the declarant is unavailable as a witness and the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Under M.R.E. 103, error may not be based on a ruling admitting evidence unless a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . Washington’s only objection to the deposition testimony was based on M.R.E. 402, 403, and 404, as presented to the trial court in his motion in limine. Further, no hearsay objection was made at trial either prior to or during the reading of the deposition. Therefore, the issue of Harmon’s unavailability was not before the trial court and will not be considered on appeal.


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