George v. State, CR

• Decision Date: 22 September 1980
• Docket Number: No. CR,CR
• Citation: George v. State, 270 Ark. 335, 604 S.W.2d 940 (Ark. 1980)
• Parties: Lowell Wayne GEORGE, Appellant, v. STATE of Arkansas, Appellee. 80-105.
• Court: Arkansas Supreme Court

Page 940

604 S.W.2d 940

270 Ark. 335

Lowell Wayne GEORGE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-105.

Supreme Court of Arkansas.

Sept. 22, 1980.

Holloway & Haddock by Bill R. Holloway, Lake Village, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

MAYS, Justice.

During a jury trial of appellant for first degree murder, the state introduced a prior consistent handwritten statement of a prosecuting witness to bolster her testimony after she testified in court. The jury convicted appellant of second degree murder and imposed a sentence of 10 years imprisonment and a $10,000 fine. For reversal, appellant contends that the trial court erred in admitting the witness' prior consistent statement. We agree and, accordingly, reverse.

In the early morning hours of July 1, 1979, appellant, Lowell Wayne George, shot Jerry French in his chest with a 22 rifle, killing him. The shooting occurred in the yard of Jerry French's house trailer in the presence of four witnesses, Keith Millerd, Betty Westmoreland, Frankie King and Becky Hogg. At the trial, Keith Millerd testified that Wayne George threatened Jerry French after a brief argument and then shot him in the chest. Betty Westmoreland testified that she heard George threaten to kill French but did not actually see George shoot French. However, the appellant and his girlfriend, Frankie King, testified that the gun went off accidentally when French grabbed it. During the cross-examination of Betty Westmoreland, appellant's counsel pointed out that a profane reference was included in her testimony concerning appellant's threat to kill Jerry French which was not contained in a prior written statement which she had given to police officers. Ms. Westmoreland explained that she had not thought about writing down "all the bad words that were said" when she provided the written statement. Although no further references were made to Ms. Westmoreland's statement, the state subsequently recalled the police investigator who had taken the statement and introduced it over the objections of appellant's counsel. With the exception of the profane reference, Ms. Westmoreland's prior written statement was in harmony with her testimony in court.

The general rule is that prior consistent statements of a witness are not admissible to corroborate or sustain his testimony given in court. Rogers v. State, 88 Ark. 451, 115 S.W. 156 (1908). Such statements are self-serving and cumulative, and their admission would simply suggest that credibility depends upon the number of times the witness has repeated the same story rather than the inherent trustworthiness of the story. 4 Wigmore On Evidence (Chadbourne Rev.) §§ 1122-1124. Moreover, such statements may be easily fabricated to achieve the same purpose for which they are primarily excluded.

The rule of exclusion of prior consistent statements is relaxed, however, where the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See, U.R.E. 801(d)(1)(ii), Ark.Stat.Ann. § 28-1001 (Repl.1979). The state contends that this exception is applicable to support the admissibility of Ms. Westmoreland's prior written statement here. We disagree. For a prior consistent statement to be admissible under this exception, the statement must predate the motive to fabricate. See, e. g., Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Any improper motive attributable to Ms. Westmoreland would likely flow from her close relationship with the decedent, Jerry French. Since that relationship predates the prior written statement as well as her testimony under oath at trial, the statement would...