1. THE STATUTE (491.074):
Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.
NOTE: The new version of this statute, effective August 28, 2000, applies to all criminal offenses, not just violations of chapters 565 (offenses against the person), 566 (sexual offenses) or 568 (child abuse offenses). The previous statute was limited to violations of those specific chapters. This statue can be particularly helpful in the prosecution of domestic violence cases in which a victim has turned uncooperative with the prosecutor.
2. RECENT CASES:
(1) EVIDENCE -- PRIOR INCONSISTENT STATEMENTS ARE ADMISSIBLE AS SUBSTANTIVE EVIDENCE IN ASSAULT AND HOMICIDE CASES, AND THEY CONSTITUTE SUFFICIENT EVIDENCE TO CONVICT IF CORROBORATED.
State v. Garner, 14 S.W.3d 67 (Mo. App. E.D. 1999). Defendant was being prosecuted for two counts of first degree murder for shooting two brothers (Tim and Johnny Bolden) to death. The prosecution's case consisted mostly of the hearsay statements previously given by now uncooperative witnesses to the police. One witness, Bobby Carson, had previously told police that on the night of the shootings he had seen defendant angrily demanding repayment of a drug debt from the victims. At trial, Carson denied making the statement. Another witness, Nicholas Miller, had previously told police that he had been with the victims on night they were killed and had seen defendant angrily demand repayment of a drug debt from them, and had heard defendant threaten them that something was going to happen. Miller said he fled through a back door as he heard shots being fired. At trial, Miller denied making those statements. Other evidence corroborated these statements. The sister of the victims testified that defendant had physically and verbally threatened the victims in the past over drug debts. Also, evidence was presented that the victims sold crack cocaine and used the proceeds to purchase heroin for his own use. Also, a footprint matching defendant's shoes had been found at the scene of the shooting. Also, Renee Hampton testified that the day before the murders, she heard defendant directly threaten Tim Bolden that he would kill him if he did not get his money. HELD: Section 491.074 expressly provides: "Notwithstanding any other provision of law to the contrary, a prior inconsistent statement of any witness testifying in a trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement." Although it has been held that a conviction may not stand solely on an uncorroborated prior inconsistent statement, these statements were sufficiently corroborated by the other evidence.
(2) HEARSAY OF AN ASSAULT VICTIM IN THE FORM OF A PRIOR INCONSISTENT STATEMENT CAN SERVE AS SUFFICIENT EVIDENCE TO PROVE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT, ESPECIALLY WHEN CORROBORATED BY PHYSICAL INJURIES OF VICTIM.
State v. Archuleta, 955 S.W.2d 12 (Mo. App. W.D. 1997). Defendant was convicted of misdemeanor assault for beating his live-in girlfriend. She gave a statement to police describing his assault when it happened, and the officers noticed her bloody nose and swollen eyes. By time of trial, she claimed she remembered calling the police but could not remember any other details of the night in question. Her prior inconsistent statement was admitted as substantive evidence under Section 491.074, RSMo. HELD: Affirmed. Prior inconsistent statements of assault victims are admissible as substantive evidence under the statute, with the only foundation for admission being whether the witness made the statement and whether it is true. The physical injuries of the victim supported her hearsay statement and helped establish the requisite foundation for admissibility. Cf. State v. Pierce, 906 S.W.2d 729 (Mo. App. 1995) (statutory rape victim recants, no corroborating evidence and lack of opportunity of Defendant to commit offense).
2. SAMPLE TRIAL BRIEF:
THE COURT SHOULD ADMIT INTO EVIDENCE THE PORTION OF THE VIDEOTAPED STATEMENT OF DEMETRIUS HARRIS WHEREIN HE DESCRIBES HIDING UNDER THE BED AND HEARING ANDREW LYONS SAYING "WHERE THEM KIDS AT" IMMEDIATELY AFTER THE SHOOTINGS BECAUSE THE STATEMENT THAT HE HEARD ANDREW LYONS SAYING THESE THINGS IS INCONSISTENT WITH HIS TRIAL TESTIMONY THAT HE DID NOT HEAR ANDREW LYONS SAY ANYTHING, AND SECTION 491.074, RSMO, PROVIDES THAT IN HOMICIDE CASES A PRIOR INCONSISTENT STATEMENT IS ADMISSIBLE AS SUBSTANTIVE EVIDENCE.
THE EVIDENCE TO BE OFFERED
At the time Andrew Lee Lyons shot the three victims on September 20, 1992, Demetrius Harris, age 7, and his sister Deonandrea Harris, age 4, were present in the home where the shootings occurred. Demetrius had been in the basement with his mother (victim Bridgett Harris) and his little brother (victim Dontay Harris) and his sister, Deonandrea. They heard the shotgun blast upstairs and his mother asked him to go see what it was. Demetrius went upstairs and saw Andrew Lyons with the shotgun and saw his grandmother (victim Evelyn Sparks) on the floor. Andrew Lyons walked downstairs with the shotgun. Demetrius followed partway. Demetrius heard another shot. He then heard his mother screaming. He then heard a third shot. He and Deonandrea ran and hid under a bed.
Demetrius Harris was interviewed on videotape on the day of the murders by Detective Phil Gregory. In that interview, Demetrius said that while he was hiding under the bed, he heard Andrew Lyons come up the steps and say, "Where them kids at."
At trial, Demetrius will probably testify in the same way he did at a recent deposition, which was that he did not remember hearing Andrew Lyons saying anything while he was hiding under the bed.
The prosecution would like to have Detective Phil Gregory testify that Demetrius told him that he heard Andrew Lyons say "Where them kids at" as he was hiding under the bed. The prosecution would like to play that single excerpt from the videotaped interview.
THE LAW
The applicable statute, effective since 1985, reads in full as follows:
Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.
The constitutionality of this statute has been upheld by the Missouri Supreme Court. State v. Blankenship, 830 S.W.2d 1 (Mo. 1992); State v. Bowman, 741 S.W.2d 10 (Mo. En Banc. 1987), cert. den., 488 U.S. 829, 109 S. Ct. 83, 102 L.Ed.2d 60 (1988). Both cases hold that the statute does not violate the confrontation clause of the Constitution.
FOUNDATION REQUIREMENTS
The party offering the prior inconsistent statement must show only that the prior statement was made and that it is inconsistent with the trial testimony. The declarant should be asked, when he is on the stand, if he made the statement and if it is true. Bowman, 741 S.W.2d at 14; State v. Chandler, 860 S.W.2d 823, 825 (Mo. App. E.D. 1993). It is no longer necessary for the party wanting to elicit the prior inconsistent statement to show surprise or hostility. Blankenship, 830 S.W.2d at 9; Bowman, 741 S.W.2d at 13. It is not necessary for the declarant to admit the truth of the statement or even that he made the prior statement as long as the fact that he made the prior statement is established by other evidence. State v. Belk, 759 S.W.2d 257 (Mo. App. E.D. 1988); Blankenship, at 12 ("[E]ven though a witness denied making the prior statement, a videotaped prior statement is sufficiently reliable to justify its admission."). Whether an inconsistency exists between trial testimony and statements made prior to trial "is to be determined by the whole impression and effect of what has been said and done." Blankenship, 830 S.W.2d at 9. A witness testifying that he does not remember an event is considered inconsistent with a prior statement wherein he did remember the event. Blankenship, at 10. A witness testifying that he does not remember giving the prior statement is inconsistent with the prior statement. Belk, 759 at 259.
The use of a videotaped prior inconsistent statement in the same manner proposed by the State herein was approved in both Blankenship, supra, and State v. Crossland, 820 S.W.2d 72 (Mo. App. S.D. 1991). In Crossland, an edited excerpt from the videotaped interview of a child victim of sexual abuse was admissible where the child had testified at trial that no acts of oral sex had occurred, but in the prior videotaped interview had stated that oral sex did occur. The editing process made sure that no part of the videotaped interview was shown to the jury except the prior inconsistent statement, so that the duplicated and cumulative parts that might be considered improper bolstering testimony were not shown.
CONCLUSION
For the reasons stated above, the Court should overrule any objection the defense makes to the admission of the brief testimony of Detective Gregory and the playing of the brief excerpt from the videotaped interview of Demetrius Harris pertaining to his prior inconsistent statement about hearing Andrew Lyons saying "Where them kids at."
- H. MORLEY SWINGLE
- PROSECUTING ATTORNEY
NOTE: The conviction in this Lyons case has been affirmed. State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997).