Reference no: EM133613020

Assignment

Moe Howard was disabled and operated a "store" that sold soda, cigarettes and other personal items out of his house in a poor neighborhood of Omaha, Nebraska. One day his wife came home from work to find the door to the house was broken off the hinges, the house was ransacked, and her husband lay dead in a pool of blood in the living room. It was clear to the EMTs and Medical Examiner that he had been beaten by a heavy object about the head and neck, and that the beating was the cause of death. For three days police had no leads regarding the murder. They had no DNA evidence, fingerprints, or any clues. On the fourth day, however; word in the neighborhood was that Bud Abbott and Lou Costello were involved in the homicide. Police went to Costello's house and talked to his live-in girlfriend Gilda Radner. After talking to her for a few minutes the police asked Radner is she would give a statement at the police station about what she remembered occurring four days earlier. She agreed and gave a statement. In giving the statement Radner described what she remembered:

Radner - He (Costello) came home about 8 am and seemed nervous. He told me to go upstairs and put the kids in their rooms. He was short tempered, and I asked what was wrong. He told me to "shut up" just keep the kids upstairs. He then went to the fridge to get a beer. I went upstairs; made sure the kids were still asleep and then came downstairs. Lou was constantly looking out the front door and the window.

Police - What did you, what did you take him to mean by saying that?
Radner - That he had beaten somebody up.
Police - Did you notice anything else?
Radner - Yeah, there was a big blood stain on his pants.

The Police interviewed Bud Abbott and Lou Costello separately. After waiving their rights, they both admitted being at the Howard house/store on the day of the murder; but each said they did not hit Mr. Howard. Abbott's story was that Costello beat Howard senseless - Costello said Abbott beat Howard until he was unconscious. Both admitted they went to the store to rob it. Abbott agreed to plead guilty to first degree robbery and agreed to testify against Costello. Besides wanting to call Abbott as a witness, the State wanted to call Radner.

Five months after the murder, the case was scheduled for trial. The State requested a pre-trial hearing before the trial judge, because Radner informed the State she really did not remember much of what she told the police - even after re-reading her statement and listening to the tape recording, she said she did not remember much of what occurred. The trial judge held a pre-trial hearing, and listened to Radner testify. Radner said she remembered going to the police station to give the statement but had no present memory of the incident. The Court determined Radner was feigning she had lost her memory. The Court ruled that Radner was NOT to be considered "unavailable" pursuant to Rule 804. The Court then ruled her prior statement given to the police could be read to the jury during trial, including Costello's statement - "I hope I didn't kill this guy." Radner's statement was read during the trial and Costello was then convicted of first-degree robbery and felony murder.

Costello now appeals his conviction. As a member of an Appellate Court, you need to rule on the following:

A. If Radner had taken the stand and testified, would the statement she made to the police be considered hearsay? Explain your answer in detail.

B. As Radner did not take the stand, does the admission of Radner's statement violate Costello's 6th Amendment's Right of Confrontation?