Kennedy v State

• Decision Date: 19 April 2001
• Docket Number: 00-1250
• Citation: 42 S.W.3d 407
• Parties: Michael Drew KENNEDY v. STATE of Arkansas CR 00-1250 Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Michael Drew KENNEDY v STATE of Arkansas

CR 00-1250

Supreme Court of Arkansas

April 19, 2001

Appeal from Van Buren Circuit Court, First Division; David L. Reynolds, Judge; affirmed.

1. Appeal & error -- petition for review granted -- case reviewed as though originally filed with supreme court. -- When the supreme court grants review following a decision by the court of appeals, it reviews the case as though it had been originally filed with the supreme court.

2. Evidence -- prior statements of witness -- what constitutes "inconsistent statement." -- An "inconsistent statement," as used in Ark. R. Evid. 613, is not limited to those instances in which diametrically opposite assertions have been made; a statement is inconsistent whenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.

3. Witnesses -- impeachment -- trial court's discretion. -- Considerable discretion is given to the trial court when determining where the line is drawn in the impeachment of a hostile witness; those rulings will not be reversed absent an abuse of discretion.

4. Witnesses -- impeachment -- trial court did not err in allowing. -- Where a witness's claimed loss of memory was conveniently favorable to appellant, her husband's first cousin, the supreme court concluded, based on an exchange between the witness and the prosecutor, that the witness's trial testimony was sufficiently inconsistent with her prior detailed statements to the police and that, accordingly, it was not error to allow impeachment of the witness.

5. Evidence -- prior statements of witness -- requirements for admission of extrinsic evidence of prior inconsistent statement. -- Under Ark. R. Evid. 613(b), three requirements must be met before extrinsic evidence of a prior inconsistent statement will be admissible: first, the witness must be given the opportunity to explain or deny the inconsistent statement; second, the opposing party must be given the opportunity to explain or deny the witness's inconsistent statement; third, the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement.

6. Evidence -- prior statements of witness -- extrinsic evidence not allowed where witness admits having made prior inconsistent statement. -- When a witness admits to having made a prior inconsistent statement, Ark. R. Evid. 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness's credibility; in other words, once a witness acknowledges having made a prior inconsistent statement, the witness's credibility has successfully been impeached; an admitted liar need not be proved to be one.

7. Evidence -- prior statements of witness -- extrinsic evidence admissible where witness denies or fails to remember making prior statement. -- Where a witness is asked about a prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible.

8. Evidence -- prior statements of witness -- first requirement of Ark. R. Evid. 613(b) was met. -- The supreme court held that, in the present case, the first requirement of Ark. R. Evid. 613(b) for admitting extrinsic evidence of a witness's prior inconsistent statements was met where the exchange between the prosecutor and the witness demonstrated that the witness was given an opportunity to explain or deny the prior statements; during her questioning, the witness consistently demonstrated an inability to recall the facts or to remember what she had previously said to the police.

9. Evidence -- prior statements of witness -- second & third requirements of Ark. R. Evid. 613(b) were met. -- The second and third requirements of Ark. R. Evid. 613(b) for admitting extrinsic evidence of a witness's prior inconsistent statements were also met where appellant was given the opportunity to explain or deny the witness's prior inconsistent statements and was given the opportunity to interrogate her about them; the record reflected that appellant was able to conduct a full cross-examination of the witness, during which defense counsel attempted to rehabilitate her credibility; accordingly, the trial court did not abuse its discretion in allowing the State to present extrinsic evidence of the witness's prior inconsistent statements.

10. Evidence -- prior statements of witness -- trial court did not err in allowing witness to be impeached through admission of extrinsic evidence of prior inconsistent statements. -- Where the witness did not fully and unequivocally admit that she had made the incriminating statements to the police; where, instead, all that the witness admitted was that she had given an interview to the police; and where the witness's testimony revealed that when asked about specific statements that she had made to the officer, she repeatedly professed a lack of memory, the supreme court concluded that the holdings in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), and Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983), were not controlling and that the trial court did not err in allowing the witness to be impeached through the admission of extrinsic evidence of her prior inconsistent statements.

11. Appeal & error -- no timely objection at trial -- argument waived on appeal. -- Where the record was devoid of any objection to the improper use of the evidence during the prosecutor's closing argument, appellant waived the argument on appeal.

12. Trial -- jury instruction -- failure to request cautionary or limiting instruction constitutes reversible error. -- Arkansas Rule of Evidence 105 provides that when evidence is admissible for one purpose but not another, it is up to the objecting party to request a limiting instruction from the trial court; when an appellant contends that the failure to give a cautionary or limiting instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim.

13. Trial -- jury instruction -- trial court was not required to give limiting instruction where no request was made. -- Where the witness's prior statements were properly admitted for the purpose of impeaching her testimony at trial, it was appellant's burden to request a limiting instruction directing the jury to consider her prior inconsistent statements only for the purpose of judging the witness's credibility and not for the truth of the matter set forth in them; because there was no request for a limiting instruction, the trial court was not required to give one.

14. Constitutional law -- Confrontation Clause -- purpose. -- The Confrontation Clause, found in both the United States and Arkansas Constitutions, is intended to permit a defendant to confront the witnesses against him and to provide him with the opportunity to cross-examine those witnesses.

15. Constitutional law -- Confrontation Clause -- appellant was not denied right to confront witnesses against him. -- Appellant was not denied his right to confront the witness at trial, nor was he denied the right to fully cross-examine her regarding her prior inconsistent statements; there was no indication from the record that the trial court in any way attempted to limit appellant's cross-examination of the witness; the record also reflected that appellant was given a full opportunity to cross-examine a state police investigator about the circumstances of his interview of the witness; the supreme court thus concluded that appellant was not denied the right to confront the witnesses against him.

16. Evidence -- prior statements of witness -- witness's statements not hearsay where properly admitted for impeachment purposes. -- Because the witness's prior statements were properly admitted for impeachment purposes and not for the truth of the matter asserted, the statements were not hearsay, and it was irrelevant that they were not given under oath and subject to the penalty of perjury, as provided in Ark. R. Evid. 801(d)(1)(i). [wbj]

Perroni & James Law Firm, by: Samuel A. Perroni and Janan Arnold Davis, for appellant.

Mark Pryor, Att'y Gen., by: Misty Wilson Borkowski, Ass't Att'y Gen., for appellee.

Donald L. Corbin, Justice.

Appellant Michael Drew Kennedy was convicted in the Van Buren County Circuit Court of first-degree battery and sentenced to ten years' imprisonment. Appellant appealed his conviction to the Arkansas Court of Appeals, asserting that the trial court erred when it allowed a prior statement given by an eyewitness to be read into evidence by the police officer who took the statement. In a 4-2 decision, the court of appeals affirmed the judgment of conviction. See Kennedy v. State, 71 Ark. App. 171, 27 S.W.3d 467 (2000). We granted Appellant's petition for review, pursuant to Ark. Sup. Ct. R. 1-2(e)(ii). We affirm.

The record reflects that on July 27, 1997, around 2:30 a.m., a fight occurred outside the 659 Club, in Choctaw, Arkansas. The fight was primarily between Appellant and Lanny Bates, although there was testimony that Appellant's friend, Rodney Brown, was also involved. As a result of the fight, Bates received multiple knife wounds to his back, neck, throat, and face. Appellant received a cut on his hand. Bates was taken by ambulance to a nearby hospital and later air-lifted to UAMS in Little Rock. Appellant was subsequently arrested and charged with first-degree battery. No other arrests were made. At trial, Appellant claimed that he had acted in self-defense and that Bates was the initial aggressor. Appellant admitted that he had cut Bates two times in the back with his knife; however, he denied making any of the other cuts to Bates.

The State presented testimony from numerous persons who witnessed the fight. Only two of the State's witnesses, Bates and Kim Kennedy, had knowledge as to how the fight started. Kim, who is the wife of Appellant's first...