Evidence--prior inconsistent statement--impeachment
The trial court did not err in an assault and robbery prosecution by allowing the State to
impeach two of its witnesses with prior statements to an officer where both witnesses admitted
making the prior statements, one of them testified that certain parts of his statement were
inaccurate and that he did not remember making parts of his statement, and the facts indicate
good faith and an absence of subterfuge.
Attorney General Michael F. Easley, by Assistant Attorney
General Daniel P. O'Brien, for the State.
Charles L. Alston, Jr., for defendant-appellant.
EAGLES, Chief Judge.
Defendant Destry Riccard was tried and found guilty of assault
with a deadly weapon with intent to kill inflicting serious injury
and robbery with a dangerous weapon in Gaston County Superior Court
on 23 August 1999. He was sentenced to 110 to 141 months for
assault with a deadly weapon with intent to kill inflicting serious
injury and 77 to 102 months for robbery with a dangerous weapon.
Defendant appeals. After careful review, we hold defendant
received a fair trial free from prejudicial error.
At trial, Leon Henderson (victim) testified that on the night
of 4 July 1998, he went to a car wash on Bessemer City Road in
Gastonia. The victim testified that immediately before he began
washing his car, he was poked in the back with a shotgun. He thentestified that he turned around and was face to face with his
assailant. The victim later identified this person in a
photographic lineup, as well as at trial, as defendant. According
to the victim, defendant pointed the shotgun in his face and
demanded all the victim's money. The victim gave defendant
approximately thirty dollars, after which defendant shot him in the
left leg.
Derek Barnes (Barnes), defendant's cousin, testified on behalf
of the State. Barnes testified that on the night of 4 July 1998,
he went “riding” with defendant, Trey Reid (Reid) and Travis Watson
(Watson) in a Ford Escort. Barnes testified that at approximately
11:00 p.m., the four men stopped at a car wash on Bessemer City
Road to use the pay phone. According to Barnes, when he and Watson
left the car to use the pay phone, they heard a gunshot and ran
back to the car. Barnes then denied that he was aware defendant
had a shotgun.
Barnes next testified that on 7 July 1998, he initiated a
conversation with Detective Tony Wilson (Wilson) at the Gastonia
Police Department. At this point, the State began to treat Barnes
as a hostile witness, asking him leading questions. Defense
counsel objected to the leading questions. Out of the presence of
the jury, the State explained to the court that Barnes had
testified to the events at issue differently on the stand than he
had described them to Wilson on 7 July. The State then asked for
permission to impeach Barnes with his prior statement to Wilson.
The State gave Barnes a copy of his statement to refresh his
recollection. The following exchange then occurred: THE COURT: Did
you tell the police,
“While we were on the phone, [defendant] got
out of the vehicle's back seat and walked over
to the next stall and shot a guy in the leg
with a shotgun, then got back in the vehicle,
and said, 'We have to go.'”?
A: See that's the part I was speaking of I
didn't agree with because in order --
THE COURT: No. My question is did you
tell that to the police?
A: I don't recall. Some of that statement I
did say that stuff -- some of the statement,
but I never said that he got -- I never -- I
didn't never say the part that he got back
into the car and said, “Let's go,” because he
was in the car when I got there; but I did see
him out of the car. That's what I'm saying.
THE COURT: All right. Did you say,
“While we were on the phone, [defendant] got
out of the vehicle's back seat and walked over
to the next stall and shot a guy in the leg
with a shotgun”?
A: No, because I never saw a shotgun. In
order for me to say that I saw him go and
shoot somebody with a shotgun, I would have to
have seen the shotgun.
After hearing arguments, the trial court overruled defendant's
objection to the State impeaching Barnes with his prior statement.
At the conclusion of the voir dire hearing, in the presence of
the jury, the State asked Barnes, over objection, whether he
recalled telling Wilson:
“While we were on the phone, [defendant] got
out of the vehicle's back seat and walked over
to the next stall and shot a guy in the leg
with a shotgun, then got back in the vehicle
and said, 'We have to go.'”
Again Barnes admitted to speaking with Detective Wilson, but denied
having made portions of that statement and reiterated his earlier
testimony.
Following Barnes' testimony, the State called Reid, whose
sister is defendant's first cousin, to testify. Like Barnes, Reidtestified to many of the details leading up to the shooting. Reid
testified that on 4 July 1998, he watched a fireworks display with
defendant, Barnes and Watson, and then the four men went “riding
around.” Reid then testified that they ended up at a car wash on
Bessemer City Road to use the pay phone. According to Reid, once
they were at the car wash, Barnes and Watson used the pay phone,
while he stayed in the car with defendant. Reid further testified
that defendant left the car briefly, and that perhaps defendant had
used the bathroom, but that he returned before Barnes and Watson
came back to the car.
The State then asked Reid about a statement he made to Wilson,
presented Reid with the statement, and asked him whether it fairly
reflected what he told Wilson on 7 July 1998. Reid responded that
there were “one or two lines in there [he] did not agree to.” The
State then asked Reid, over objection,
isn't it true that you told Detective Wilson
that [defendant] got out and walked over to
the car in the next stall and shot the person,
then came back, and got back in the vehicle
saying we needed to go?
Reid answered, “[n]o sir.”
Later, the State called Detective Wilson to the stand. Before
allowing Wilson to testify as to the statements made to him by
Barnes and Reid on 7 July 1998, the trial court gave the following
instruction to the jury:
Members of the jury . . . this testimony is
offered for purposes of corroboration or lack
of corroboration of the prior testimony of Mr.
Barnes and Mr. Reid. You may consider it for
that purpose only.
Detective Wilson then proceeded to relate the statements made tohim by Barnes and Reid in which both men implicated defendant in
the shooting of the victim. Wilson further testified that based on
their statements, he included defendant's photograph in a lineup
from which the victim immediately picked out defendant as his
assailant.
Both defendant and Watson testified on behalf of defendant.
Watson testified that defendant was not in possession of a shotgun
on 4 July 1998. Watson additionally testified that when he heard
gunshots at the car wash, he and Barnes ran back to the car, where
Reid and defendant were waiting.
Defendant testified that while Barnes and Watson used the pay
phone at the car wash, he and Reid cleaned out their car, and then
he used the restroom. Defendant then testified that when they
heard gunshots he and Reid got in the car, then Barnes and Watson
ran up and got in the car, and the men drove off. Defendant denied
that he was in possession of a shotgun on 4 July 1998, and denied
robbing or shooting the victim.
On appeal, defendant contends that the trial court committed
reversible error by allowing the State to impeach Barnes and Reid
on a collateral matter with extrinsic evidence. We are not
persuaded.
“Under certain circumstances a witness may be impeached by
proof of prior conduct or statements which are inconsistent with
the witness's testimony.” State v. Whitley, 311 N.C. 656, 663, 319
S.E.2d 584, 589 (1984). Such statements are admissible under North
Carolina Rule of Evidence 607 for the purpose of shedding light on
a witness's credibility. Id. In State v. Williams, 322 N.C. 452,368 S.E.2d 624 (1988), our Supreme Court set out the basic
principle of this area of evidence:
A witness may be cross-examined by confronting
him with prior statements inconsistent with
any part of his testimony, but where such
questions concern matters collateral to the
issues, the witness's answers on cross-
examination are conclusive, and the party who
draws out such answers will not be permitted
to contradict them by other testimony.
Id. at 455, 368 S.E.2d at 626 (quoting State v. Green, 296 N.C.
183, 192, 250 S.E.2d 197, 203 (1978)). Thus, under Williams, “it
is clear a prior inconsistent statement may not be used to impeach
a witness if the questions concern matters which are only
collateral to the central issues.” State v. Najewicz, 112 N.C.
App. 280, 288, 436 S.E.2d 132, 137 (1993); State v. Hunt, 324 N.C.
343, 378 S.E.2d 754 (1989); State v. Jerrells, 98 N.C. App. 318,
390 S.E.2d 722 (1990). What is sometimes unclear, however, is what
is “material” and what is “collateral.” Najewiczi, 112 N.C. App.
at 289, 436 S.E.2d at 138. Generally speaking, “material facts
involve those matters which are pertinent and material to the
pending inquiry,” while “collateral” matters are those which are
irrelevant or immaterial to the issues before the court. Whitley,
311 N.C. at 663, 319 S.E.2d at 589; Najewiczi, 112 N.C. App. at
289, 436 S.E.2d at 138.
Here, defendant relies upon State v. Williams, State v. Hunt
and State v. Jerrells to support his argument that Barnes and Reid
were improperly impeached on collateral matters with extrinsic
evidence. In each of the three cases relied upon by defendant ourcourts held “that once a witness denies having made a prior
statement, the State may not impeach that denial by introducing
evidence of the prior statement.” State v. Wilson, 135 N.C. App.
504, 507, 521 S.E.2d 263, 264-65 (1999); State v. Minter, 111 N.C.
App. 40, 48-49, 432 S.E.2d 146, 151 (1993). The rationale behind
these holdings is that “once the witness denies having made a prior
inconsistent statement . . . the prior statement concerns only a
collateral matter, i.e., whether the statement was ever made.”
Najewiczi, 112 N.C. App. at 289, 436 S.E.2d at 138. Here, unlike
the situations presented in Williams, Hunt and Jerrells, both
Barnes and Reid admitted making statements to Wilson on 7 July.
Accordingly, these cases are inapposite.
Where the witness admits having made the prior statement,
impeachment by that statement has been held to be permissible. In
State v. Wilson, 135 N.C. App. 504, 521 S.E.2d 263 (1999) two
witnesses testified as to the events of the night of 22 February
1997 when defendant was involved in an assault. Both witnesses
also admitted making statements to the police regarding the
assault. Over defendant's objection, the State was permitted to
examine these witnesses about their prior inconsistent statements
to the police. Id. at 506, 521 S.E.2d at 264. On appeal we held
that “[s]ince neither [witness] denied making the prior statements,
their introduction was not collateral and therefore the trial court
properly allowed the State to use these witnesses' prior statements
for impeachment purposes.” Id. at 507, 521 S.E.2d at 265. Likewise, where there is testimony that a wit
ness fails to
remember having made certain parts of a prior statement, denies
having made certain parts of a prior statement, or contends that
certain parts of the prior statement are false, our courts have
allowed the witness to be impeached with the prior inconsistent
statement. In State v. Whitley, 311 N.C. 656, 319 S.E.2d 584
(1984) the witness testified that she did not remember making
specific statements to the police which tended to inculpate
defendant, and then denied having made those specific statements.
Our Supreme Court held that because “the prior statement with which
[the witness] was impeached was inconsistent in part with her
testimony and material in that it related to events immediately
leading to the shooting,” the witness could be impeached concerning
the inconsistencies in her prior statement. Id. at 663, 319 S.E.2d
at 589. Moreover, in State v. Minter, 111 N.C. App. 40, 432 S.E.2d
146 (1993) where the witness denied making certain statements
before the grand jury and also claimed that some statements he made
to the grand jury were false, we held it permissible for the State
to impeach the witness with his prior inconsistent statements.
At trial both Barnes and Reid admitted making statements to
Wilson in which they discussed details of the robbery and assault
of the victim and implicated defendant. Barnes, however, testified
that certain parts of his statement were inaccurate, and that he
did not remember making certain parts of his statement. Reid also
testified that certain parts of his statement were inaccurate.
Thus, we conclude that under Whitley, Wilson and Minter the trialcourt did not err in allowing Barnes and Reid to be i
mpeached
concerning the inconsistencies in their prior statements.
Finally, we note that while North Carolina Rule of Evidence
607 allows a party to impeach its own witness on a material matter
with a prior inconsistent statement, impeachment is impermissible
where it is used as a mere subterfuge to get evidence before the
jury which is otherwise inadmissible. State v. Hunt, 324 N.C. 343,
349, 378 S.E.2d 754, 757 (1989); State v. Price, 118 N.C. App. 212,
216, 454 S.E.2d 820, 822-23 (1995). “Circumstances indicating good
faith and the absence of subterfuge . . . have included the facts
that the witness's testimony was extensive and vital to the
government's case . . . ; that the party calling the witness was
genuinely surprised by his reversal . . . ; or that the trial court
followed the introduction of the statement with an effective
limiting instruction . . . .” Hunt, 324 N.C. at 350, 378 S.E.2d at
758 (citations omitted).
Here, the facts indicate “good faith and an absence of
subterfuge.” Id. at 350, 378 S.E.2d at 757. The testimony of
Barnes and Reid was extensive and vital to the State's case. Both
witnesses testified to the events of 4 July 1998 leading up to the
robbery and assault of the victim. Both witnesses testified that
they watched a fireworks display and attended a party, and later
went “riding” in a Ford Escort. Both Barnes and Reid testified
that they stopped at the car wash on Bessemer City Road to use the
pay phone around 11:00 p.m., and that defendant was out of their
sight for a sufficient time to have committed these crimes. Moreover, there is no indication that the State anticipated that
Barnes and Reid would contradict the statements they had given to
Wilson on 7 July. Finally, upon defendant's request, the trial
court gave an effective limiting instruction to the jury before
Wilson's testimony was elicited. Under the circumstances here, we
cannot conclude that the impeachment of Barnes and Reid was “used
as a mere subterfuge to get evidence before the jury which is
otherwise inadmissible.” Id. Accordingly, this assignment of
error fails.
No error.
Judges HUDSON and SMITH concur.
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