Varner v. State
| Decision Date | 22 April 1986 |
| Docket Number | 3 Div. 132 |
| Citation | 497 So.2d 1135 |
| Parties | Robert Curtis VARNER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Eugene W. Reese, of Reese & Addison, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
The appellant was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975, and was sentenced to life imprisonment.
During the course of investigating the murder in question, Montgomery police officers talked to Daniel Hunter, who lived in the vicinity of the murder. Hunter told the police that he had seen the appellant stab the deceased. The police took Hunter to the police station, where a videotape of his statement was made. Based upon Hunter's statement, and also upon other evidence gathered by the police, the appellant was arrested and subsequently indicted for murder.
At the trial, the state did not call Hunter as a witness during its case in chief. The appellant called Hunter to the stand and elicited testimony about the killing. On cross-examination by the state, Hunter identified the appellant as the man he had seen stab the deceased. He testified:
However, when defense counsel again questioned Mr. Hunter on redirect, he went back to the version of his testimony that he did not see the stabbing, and that he had been coerced by the authorities into saying otherwise:
On re-cross by the state, Mr. Hunter went back to the version of his story favorable to the prosecution:
After the defense had rested, the state offered into evidence a videotaped statement by Hunter. Over the appellant's objection, the video was admitted.
The appellant attacks the admissibility of Hunter's videotaped statement in several ways. First, the appellant contends that the tape was introduced by the state as a prior consistent statement for the purpose of corroborating Hunter's testimony on cross-examination. Generally, the proponent of a witness may not bolster the credibility of a witness by showing that he made similar statements on prior occasions. Macum v. State, 39 Ala.App. 616, 107 So.2d 899 (Ala.Cr.App.1958). Here, a unique argument is presented in that the appellant maintains that the state's introduction of the videotaped testimony constitutes an attempt by the opponent of a witness to bolster the witness's credibility. The videotaped evidence in this case was offered on rebuttal. Rebuttal evidence is "evidence which is offered by a party after the opponent has rested in order to contradict the opponent's evidence." Black's Law Dictionary, 1139 (5th ed. 1979). The state offered the evidence as a prior inconsistent statement. As such, it is admissible.
Resourceful counsel for the appellant maintains, however, that even if the videotaped testimony was properly received as a prior inconsistent statement, the trial court erred when it failed to instruct the jury, on its own motion, that such evidence could be considered only as impeachment evidence. That is, that it could not be considered on the merits. The rule is that prior inconsistent statements of a witness may be used to impeach the credibility of the witness but, generally, may not be considered as substantive evidence. Randolph v. State, 348 So.2d 858 (Ala.Cr.App.1977); C. Gamble, McElroy's Alabama Evidence, § 159.02(1) (3d ed. 1977). No limiting instructions were given nor requested. Does the trial court have a duty, ex mero motu, to inform the jury that certain evidence may be considered by them only to impeach the witness's credibility? Some courts have held that the likelihood of a jury's considering a witness's prior inconsistent statement as substantive evidence of an accused's guilt is so great as to require the trial court itself to provide limiting instructions. People v. Taglia, 113 Ill.App.3d 260, 68 Ill.Dec. 879, 446 N.E.2d 1276 (1983). In Weaver v. State, 466 So.2d 1037 (Ala.Cr.App.1985), we held that, where no limiting instructions have been requested, the trial court is not required to instruct the jury that a prior inconsistent statement of a witness may be considered only for impeachment purposes. Conforming to this direct precedent, we hold that the trial court's failure to give the jury limiting instructions in this case was not error.
The appellant also contends that, when Hunter admitted in open court to making the inconsistent statements, he was already impeached and the state should not thereafter have been permitted to introduce the videotaped testimony as further impeachment material. Further, appellant argues that, under these circumstances, the taped statement was improperly introduced as substantive evidence. The fact that evidence has been received tending to impeach a witness does not preclude the introduction of other evidence with the same purpose. 98 C.J.S. Witnesses, § 530 (1971).
The appellant next contends that the trial court erred to reversal in refusing to admit Hunter's affidavit into evidence when it was offered in surrebuttal. He argues first that the affidavit was properly admissible under the doctrine of curative admissibility to rebut the taped testimony introduced by the state. Since we have held that the videotaped statement was properly admitted, there was nothing improper to "cure," and the doctrine of curative admissibility does not apply. This is an appealing argument since the appellant sought to use a prior consistent statement to rehabilitate his witness, who had been impeached with a prior inconsistent statement. The states are fairly equally divided regarding whether such a procedure is permissible. See, McCormick on Evidence, § 49 (E. Cleary, 3d ed. 1984); Annot., 75 A.L.R.2d 909, 930-35 (1961); Annot., 140 A.L.R. 21, 49-78 (1942). Alabama follows the rule that disallows admission of a prior consistent statement in most circumstances. See, Long v. Whit, 197 Ala. 271, 72 So. 529 (1916), and cases collected therein. C. Gamble, McElroy's Alabama Evidence, § 177.01(2), (3d ed. 1977), states:
"As a general rule, the impeachment of a witness by the introduction of evidence that he has made a statement which is inconsistent with his testimony does not authorize the proponent of the witness to support his credibility by evidence that the witness has made a statement on another occasion of the same tenor as his present testimony. This is true whether or not the witness is a party,1 whether or not the witness admitted the making of the prior inconsistent statement,2 whether the witness denied making such statement and testimony that he made it came from the mouths of another witness 3 and whether or not the prior similar statement was made before or after the time of the claimed inconsistent statement.4
The record makes it clear that this is not a situation in which the witness surprised counsel by his testimony. Evidently each party knew what Hunter would say when examined. By not calling him, the prosecution secured to itself the right to introduce a prior statement, while the rules denied the calling party the same opportunity.
The appellant also maintains that the prosecution improperly commented upon the appellant's bad character. The comments objected to by the appellant are as follows:
Also, during closing argument, the following occurred:
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