recorded, out-of-court statement admitted under Rule 803(5) because State showed at trial that declarant lacked recollection, that she had personal knowledge of the events in the statement, and that she had made a full and complete statement of the events according to an officer who took her statement
How later courts described this case
- recorded, out-of-court statement admitted under Rule 803(5) because State showed at trial that declarant lacked recollection, that she had personal knowledge of the events in the statement, and that she had made a full and complete statement of the events according to an officer who took her statement
- recorded, out-of-court statement admitted under Rule 803(5
- “Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”
- “[Witness’s] prior recorded statement fell with [sic] a firmly rooted hearsay exception under Evid. R. 803(5) as a prior recorded statement.”
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring in result.
As to Issue I, I concur in result. The issue argued is that Flynn should have been permitted, by his attorney, to review all of the evidence to be used against him. I do not agree with the majority’s rationale for holding that this issue presents no cause for reversal. The failure to present a “cogent” argument means merely that the argument has failed to persuade us. Oxford Amerioan Dictionary 121 (1980). This failure to persuade does not mean that the argument has been waived. I recognize that there are innumerable cases which clearly state that failure to present a “cogent” argument results in waiver as if such were a requirement of our Indiana Rules of Appellate Procedure. However, App.R. 8.3(A)(7) which sets forth the requirements relative to the presentation of argument in the appellant’s brief, nowhere contains the word “cogent.”
I do note that there is no basis for reversal upon this issue because Flynn has failed to show that he has been prejudiced by having specific pre-trial knowledge of information known to his attorney.
I concur in result as to Issue II but in doing so would express a caveat with respect to the generalized and broad statement as to the nature and purpose of Evid. R. 803(5) and as to the safeguards which are built in to protect against misuse of the rule. See Williams v. State (1998) Ind.App., 698 *750 N.E.2d 848 (Sullivan, J., dissenting), reh’g denied.
I concur in result as to Issue V. To the extent that the evidence in question may have proved a separate and unrelated battery and confinement and a display of arguable mental instability, it may have been somewhat prejudicial but I wholly fail to discern that a reasonable trier of fact would allow such evidence to impact a guilt determination as to the burglaries and the theft.
I fully concur as to Issues III, IV, VI and VII.