The Tennessee Supreme Court rejected a Memphis defendant’s argument that he was entitled to a new trial because a witness on the stand said he was unable to recall his earlier statements about the murder.
Marlo Davis was convicted of second degree murder and reckless homicide in the 2006 death of a man working on a rental property in Memphis. During the investigation of the death, one witness gave a sworn statement to police and then later testified at a preliminary hearing that he saw Mr. Davis shoot the victim. At trial, that same witness said he could not recall what happened that day and did not recall what he had said to police or at the hearing.
The defense argued that admitting the previous statements would be a hearsay violation. Hearsay is typically testimony made in court about something that was said out of court and generally is not admissible at trial. There are exceptions that allow hearsay statements to be admitted as evidence. One such exception is when a witness is unable to recall events or details that he previously had knowledge of but had recorded those details at an earlier time, such as in a written statement to police or recorded testimony from an earlier court proceeding, as was the case here.
The defendant argued that the hearsay exception did not apply because the witness only said he couldn’t remember the events surrounding the murder, but was feigning memory loss. The trial court allowed the earlier statements to be entered as evidence, and the defendant appealed to the Court of Criminal Appeals, which upheld the trial court’s decision.
On appeal to the Supreme Court, the Court rejected the argument regarding feigned memory loss, saying that the trial court had no way of definitively determining if a witness was being truthful about their lack of memory. The Court also determined that the truth-finding function of the trial took priority.
The Court also rejected the defendant’s argument that he was entitled to a new trial because the jury’s verdicts on the two counts were inconsistent. Although Mr. Davis was charged with first degree felony murder and first degree premeditated murder, he was convicted of the lesser offenses of second degree murder and reckless homicide. Because the culpable state of mind of the defendant is different for these two crimes, Mr. Davis argued that inconsistency of the verdicts merited a new trial. The Court disagreed, said the trial court properly merged the two convictions, and upheld Mr. Davis’ 40-year sentence.
Chief Justice Sharon Lee, though concurring with the majority, filed a separate opinion underlining the many delays that occurred in the case and stressing the problems that can arise when a case languishes in the trial court for so long.
Read the State v. Marlo Davis opinion, authored by Justice Bivins, and the concurring opinion by Chief Justice Lee.