April 23, 2013 § 2 Comments
The COA case of Estate of James D. Hodges, Deceased: Hodges v. Hodges, decided March 12, 2013, stands for the important proposition that, merely because you have an appraisal report, it does not mean that the judge can consider it.
The case involved a property dispute in an estate between Daniel, son of the decedent, and his step-mother, Susan. At a hearing in 2010, the then-sitting chancellor ordered Daniel to obtain appraisals of property in controversy, and that, if Susan was unhappy with the appraisal she could obtain her own. Daniel hired an appraiser, Livingston, to do the work. Susan, however, never got her own appraisals.
At trial in 2011, before another chancellor who replaced the original chancellor, Susan objected to admission of the appraisals on the ground that Daniel did not call the appraiser to sponsor and be cross examined about them. The judge ruled that they were admissible because the first chancellor had ordered them. No doubt he also pointed out that Susan could have gotten her own appraisals if she were not satisfied with Daniel’s, per the first judge’s explicit order. Susan appealed.
Judge Lee, for the court, stated:
¶8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So. 3d 724, 730 (¶12) (Miss. Ct. App. 2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”
¶9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
¶10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] . . . must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946-947 (¶14) (Miss. 2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.
¶11. In order to determine reliability under the second prong of the Daubert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So. 2d at 947 (¶16). The trial judge may look to factors including:
“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).
¶12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.
¶13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the case. For this reason, we reverse the decision of the Simpson County Chancery Court.
A few points:
- When Daniel got the appraisals he could have propounded requests for admission to Susan to get her to admit to the authenticity and accuracy, etc. of the appraisals so that he did not have to call a sponsor. If Susan denied the request, causing Daniel to incur expense to call the witness who did establish the authenticity and accuracy, then he could petition the court to order Susan to reimburse his expenses.
- I would bet that the first chancellor’s order that Susan could obtain her own appraisals if she did not agree led everyone, second judge included, to believe that the burden was on Susan to do something if she did not agree. When she did not, it appeared that she had waived any objection. Only problem is, the first judge’s ruling did not relieve anyone from complying with the MRE.
- Judge Lee’s analysis is a great template for how you need to evaluate proof you will need to establish some points at trial.
- Think these things through. Instead of just stumbling into the court room on the date set for hearing, think ahead. Call opposing counsel and ask whether she is going to require you to call the expert. If she tells you that won’t be needed, and you get to trial and the other side reverses field, ask for a continuance to get the witness you need. In this case, I think counsel for Susan could easily have gotten a continuance for that purpose on the basis that the first judge’s ruling confused everyone.
February 11, 2013 § 2 Comments
Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.
A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.
The COA rejected Sheri’s argument. Judge Lee, for the court:
¶16. “Even though police reports, if offered in evidence to prove the truth of the matter asserted[,] are hearsay and the information within them may be based on hearsay, they may be admissible under the hearsay exception in [Mississippi] Rule [of Evidence] 803(8).” Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 491 (¶36) (Miss. 2010). Rule 803(8), entitled “Public Records and Reports,” states:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).
¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.
¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.
In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.
One is left to wonder whether Sheri’s objections would have been upheld if Walter had been the sponsor of the report, and if Sheri had truthfully denied the facts in the report. What do you think? Don’t overlook this statement by Judge Lee: “The report clearly contains information gathered from both Walter and Sheri.”