Yvon Wagner v. County of Maricopa

Opinion by Judge NOONAN; Dissent by Judge N.R. SMITH.

ORDER

The opinion filed on November 16, 2012 is amended by eliminating the following part of the opinion:

*944 At Slip opinion page 13356 at through to page 13359 ending immediately before

Insert in its place the following paragraph:

The dissenting portion of the opinion filed on November 16, 2012 is amended by eliminating the following:

At Slip opinion page 13359 delete and replace it with the following paragraph:

dissenting:

They say “the third time’s the charm.” Not so in what is now the third revision of this opinion, wherein the majority still fails to correct all of its errors. As a result of these errors, contrary to the Federal Rules of Evidence, non-contemporaneous hearsay testimony used to prove a declarant’s memories, beliefs, and the cause of an underlying state of mind is now admissible. Making matters worse, the majority allows such testimony absent a foundation of personal knowledge. In its opinion, the majority reverses the district court on issues that have been waived and are not properly before the panel, fails to correctly construe the hearsay rule and fails to give the proper deference to the district court’s *949 other evidentiary rulings. I must therefore dissent because:

1. Assuming (but not deciding) that a de novo standard of review applies when determining whether a statement is hearsay, the majority fails to properly construe the hearsay rule. Under the hearsay rule, statements asserting a declarant’s beliefs are hearsay, if offered to prove the declarant’s belief or offered for a purpose that requires the declarant to believe the matters asserted are true.…

FACTS

Eric Vogel was born on December 21, 1964. By the age of six, he was showing signs of potential illness. His parents withdrew him from school when he was in the second grade, and he was thereafter home-schooled until he graduated from high school. He attended a community college for two semesters and part of a semester at Arizona State University. Thereafter, he simply lived at home.

Living at home, without further formal education, Vogel had no gainful employment and lived a remarkably restricted life. The windows of his home itself were covered with blankets and tape so that no one could see in. After his father’s death or departure, he lived alone with his mother. He left the home no more than two or three times to attend the funerals of relatives. In October 2001, when Vogel was 36, his sister, Yvon Wagner, visited the home and found him to be delusional, imagining that a snake was around his neck.

On the morning of November 12, 2001, for no apparent reason, Vogel left his home. Police responded to a report of a burglar in the neighborhood and spotted Vogel as a possible suspect. The first officer on the scene struggled to get control of him while Vogel shouted, “Kill…