State v. Martin

• Decision Date: 11 April 1983
• Docket Number: No. 5713-PR,5713-PR
• Citation: 663 P.2d 236,135 Ariz. 552
• Parties: STATE of Arizona, Appellee, v. John Joseph MARTIN, Appellant.
• Court: Arizona Supreme Court

Page 236

663 P.2d 236

135 Ariz. 552

STATE of Arizona, Appellee, v. John Joseph MARTIN, Appellant.

No. 5713-PR.

Supreme Court of Arizona In Banc.

April 11, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Clifford C. Wamacks, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Bruce M. Preston, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Justice.

The defendant was convicted of two counts of child molestation, A.R.S. § 13-1410, and sentenced to concurrent terms of ten and one-half years. The Court of Appeals reversed. State v. Martin, --- Ariz. ---, 663 P.2d 240 (1982). We granted the state's petition for review to correct what we believe to be an improper determination by the Court of Appeals as to when the motive to fabricate began for the purpose of excluding a prior consistent statement. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and A.R.S. § 12-120.24.

The issue raised on appeal is whether the trial court erred in allowing the state's witnesses to testify as to the victim's prior consistent statements in order to rebut a defense charge of improper motive on the part of the victim.

The facts necessary for a determination of this issue are these. The defendant was accused of child molestation. The alleged victim, 11 years old at the time of trial, testified as to numerous episodes of sexual molestation, some of which preceded the defendant's marriage to her mother. She also related the events of 9 July 1980, on which the instant charges were based.

The victim further testified that since her mother would not help her defend against her step-father's harassment, she eventually, in October 1980, confided in her teacher about her problems. The teacher, in turn, notified the appropriate authorities. On cross-examination of the victim, defense counsel implied that she had fabricated her testimony owing to improper motives relating to the defendant's disturbance of her relationship with her mother and with another, allegedly lesbian, relationship with her friend.

The state then called the victim's teacher who recounted the victim's conversations with her, in which the victim related episodes of molestation occurring before and after, as well as at the time of, the events leading to the instant charges. The state then called a police officer, a detective, a psychologist and a pediatrician, all of whom became involved in the investigation after the teacher had referred the matter to the authorities. Each of these witnesses, over defense objection, recounted the story that the victim had told. The testimony of the teacher and the other state's witnesses was admitted by the trial court as prior consistent statements under Rule 801(d)(1)(B), Arizona Rules of Evidence, 17A A.R.S. The rule reads:

(d) Statements which are not hearsay. A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive * * *.

It is noted that the rule declares prior consistent statements to be non-hearsay. They are then admitted substantively and not just to buttress the credibility of the witness. State v. Finn, 111 Ariz. 271, 278, 528 P.2d 615, 622 (1974); Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 207, 571 P.2d 699, 704 (App.1977); Udall & Livermore, Arizona Law of Evidence, § 124 at 251 (2d ed. 1982). The prior consistent statements were admitted as substantive evidence in the instant case. The trial judge did not make a determination that the prior consistent statements were made prior to the existence of a motive to fabricate.

From verdicts and judgments of guilt, defendant appealed. The Court of Appeals reversed, State v. Martin, supra, and we granted the state's petition for review. We agree with the opinion of the Court of Appeals that in order for a prior consistent statement to be admissible under the Rules of Evidence, the prior statement must precede the motive to fabricate. See State v. Martin, supra, slip op. at 5-6. We disagree with the Court of Appeals, however, that the record before them was sufficient to determine when the motive to fabricate arose.

The treatment of the admissibility of prior consistent statements has undergone four phases in England and the United States. Professor Graham has stated the history:

Prior to 1675, consistent statements were admissible as substantive evidence presented during a party's case in chief. With the advent of the hearsay rule, prior consistent statements, although no longer admissible for the truth of their contents, remained admissible during a party's case in chief, but then solely to buttress in advance the credibility of the in-court witness. Beginning in the early 1800s, prior consistent statements were no longer admitted into evidence for any reason during presentation of a party's case in chief. Such statements became admissible only by way of rebuttal, to support the credibility of the witness after credibility had been attacked. Dispute among the courts during the latter period focused upon the circumstances under which a prior consistent statement is relevant to rebut an attack upon the credibility of the in-court witness. With the promulgation of the Federal Rules of Evidence in 1975, a fourth period of development was entered--prior consistent statements are once again admissible as substantive evidence, but only if relevant to rebut specified attacks upon the credibility of the in-court witness. Graham, Prior Consistent Statements: Rule 801(d)(1)(B) of the Federal Rules of Evidence, Critique and Proposal, 30 Hastings L.J. 575, 578 (1979).

The rule in Arizona today is that prior consistent statements may be admitted substantively to rebut attacks upon the credibility of the in-court witness. Our case law has not been clear, however, as to what limitations are to be placed upon the admissibility of this evidence, once the credibility of the witness is challenged.

In State v. Gause, 107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds 409 U.S. 815, 93 S.Ct. 192, 34 L.Ed.2d 71 (1972), we admitted an impeached witness's prior consistent statements after concluding that "they were made at a time when there was 'no apparent motive for falsifying' " on his part. Id. at 496, 489 P.2d at 835. This case was decided before the adoption of the Rules of Evidence in 1977.

In the only opinion of this court since the adoption of the Rules of Evidence, we held that a rape victim's statements to a police officer interviewing her on the evening of the sexual assault were admissible under Rule 801(d)(1)(B) because they were consistent with her trial testimony. State v. Williams, 131 Ariz. 211, 214, 639 P.2d 1036, 1039 (1982). We did not consider, however, whether the statements' admissibility was predicated on their having been made prior to the motive to fabricate. Neither do we find two recent opinions of the Court of Appeals helpful. In State v. Conroy, 131 Ariz. 528, 642 P.2d 873 (App.1982), the victim told the apartment manager that she had been molested by the defendant several days after the episode. The manager then notified her parents, who in turn notified the police. Id. at 529, 642 P.2d at 874. At the trial the 5 year old victim either denied or had forgotten the acts of molestation. Id. at 531, 642 P.2d at 876. Each of the other witnesses related the victim's accounts of the molestation after the events occurred. The trial court admitted these earlier statements, but it is not clear...