People v. Andrews, 84CA1009
| Decision Date | 29 May 1986 |
| Docket Number | No. 84CA1009,84CA1009 |
| Citation | 729 P.2d 997 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Densley ANDREWS, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, David Densley Andrews, appeals the judgment of conviction entered upon a jury verdict finding him guilty of manslaughter. As grounds for reversal, he asserts that the trial court improperly admitted evidence of a prior consistent statement to bolster a prosecution witness' direct testimony. We affirm.
On the night of August 20, 1983, Steve Watson, the victim, and Doris Rorex, his girlfriend, visited the home of the defendant and his wife Irma Andrews. During a game of dominoes, a fight broke out, and defendant fatally stabbed Watson. Defendant was subsequently charged with second degree murder.
The central issue at trial was the credibility of the two eyewitnesses and of defendant. Defendant and his wife Irma testified that the victim, who was drunk at the time, became belligerent and attacked defendant, who acted in self-defense.
The prosecution's main witness was Doris Rorex. On direct examination, she gave a detailed account of the events of the evening and, in substance, indicated that defendant had provoked the fight which led to the victim's death.
On cross-examination, defense counsel challenged much of Rorex' description of the events surrounding the crime. In addition, he impeached her direct testimony with specific references to inconsistencies between her testimony at the preliminary hearing and her statement to the police after the incident. This impeachment included the following exchange concerning her statement to a police officer:
Defense counsel:
Rorex:
On redirect, the prosecution introduced a portion of Rorex' preliminary hearing testimony. Over defense counsel's objection, the trial court allowed Rorex to read an excerpt from this testimony which was consistent with her testimony on direct examination at trial. Defendant contends this was error. We disagree.
Generally, a witness' out-of-court statements cannot be used to bolster his trial testimony. Connor v. People, 18 Colo. 373, 33 P. 159 (1893). However, a prior consistent statement may be admitted for the purpose of rehabilitation after a witness has been impeached by a prior inconsistent statement. People v. Delguidice, 199 Colo. 41, 606 P.2d 840 (1979).
CRE 801(d)(1)(B) allows a prior consistent statement to be admitted as substantive non-hearsay evidence as well as for the purpose of rehabilitation if:
"The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive...."
Defense counsel's general attack on Rorex' trial testimony and his impeachment of her with prior inconsistent statements implied recent fabrication. Rorex testified at trial and was subject to cross-examination concerning the statement. Accordingly, Rorex's prior consistent statement was properly admitted since it constituted both substantive evidence under CRE 801(d)(1)(B) and proper rehabilitation evidence. People v. Delguidice, supra.
However, defendant raises the additional argument that because Rorex's preliminary hearing testimony was given after her statement to the police, it should not be admissible. We disagree.
We note that the plain language of CRE 801(d)(1)(B) does not...
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...109 N.M. 298, 303, 784 P.2d 1041, 1046; State v. Johnson (1989), 235 N.J.Super. 547, 556, 563 A.2d 851, 856; People v. Andrews (Colo.App.1986), 729 P.2d 997, 999; Commonwealth v. Poor (1984), 18 Mass.App. 490, 493, 467 N.E.2d 877, 880. A number of federal courts have even gone so far as to ......
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State v. Kurt Paul Nichols, 93-LW-0100
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...after a witness has been impeached by a prior inconsistent statement. People v. Eppens, 979 P.2d 14 (Colo.1999); People v. Andrews, 729 P.2d 997 (Colo.App.1986). The determination of how much of a prior consistent statement is admissible is based upon its relevance and probative use. People......
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...the rule makes them admissible as substantive evidence as well. See e.g., People v. Tyler, 745 P.2d 257 (Colo.App.1987); People v. Andrews, 729 P.2d 997 (Colo.App.1986). The fact that rule CRE 801(d)(1)(B) permits the use of out-of-court statements for substantive purposes is not in dispute......
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Hearsay Definitions; Hearsay Rule — Rules 801 and 802
...1992). • An admission of prior consistent statements is not limited to those made prior to the inconsistent statement. People v. Andrews, 729 P.2d 997 (Colo. App. 1986). • Newspaper articles that purported to quote statements of the defendant offered for truth of the assertions are inadmiss......
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Rule 801(d)(1)(b): Admissibility of Prior Consistent Statements
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