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State v. Kamps5/13/2003
trial court played a taped statement given by Mr. Pourier approximately two months after the shooting. Initially, Mr. Kamps objected on foundation grounds, but relented because he was satisfied the tape would be admissible because of Mr. Pourier's memory loss. In his taped statement, Mr. Pourier said he and Ms. Blankenship went to Ms. Peterson's house to render assistance. He said he knocked on the door and Ms. Peterson waved them in.
Mr. Pourier said he and Mr. Kamps had an argument that escalated into a fight. He was not sure who threw the first punch. After the fight died down, Mr. Kamps disappeared for a moment. Mr. Pourier said he was standing in the living room when he felt a sting in his back that caused him to fall forward. Mr. Pourier turned and saw Mr. Kamps with a gun 'yelling at me like he was going to shoot me and whatnot.' Report of Proceedings (RP) at 369. Mr. Pourier could not remember anything after that. Later in the trial, Mr. Kamps played another taped interview, this one between Mr. Pourier and defense counsel.
Johnathon Kamps, the defendant's nephew, was evasive. The court allowed leading questions and his treatment as a hostile witness without objection. The State used Johnathon's statement to police to compel more complete testimony. Johnathon indicated he saw Mr. Kamps kick down the door, hit Ms. Peterson, grab her by the hair, and slam her about the residence shortly before the shooting. Johnathon testified he was sitting on the front porch when Mr. Pourier arrived. Mr. Pourier knocked, paused for a few seconds, and then went in the residence. Johnathon, reminded again by his statement to police, testified Ms. Peterson told Mr. Pourier to 'get him {Mr. Kamps} to the ground.' RP at 413. He remembered Mr. Kamps obtained a gun, but he was not sure when or where the shooting started.
Ms. Peterson was an uncooperative witness. Without objection, the State used her prior statement to police to compel her to testify that Mr. Kamps beat her shortly before the shooting. Again, the court allowed leading questions.
Ms. Blankenship testified she could not remember much about the actual shooting. She remembered Mr. Kamps pointing a gun at her and Mr. Pourier and that she felt she would be shot.
Mr. Kamps testified he got into an argument with Ms. Peterson about drug use. He testified the sole time the argument got physical was when Ms. Peterson tried to grab his car keys out of his pocket and he pushed her away. Mr. Kamps said Mr. Pourier then ran into the house and grabbed him around the neck and beat him repeatedly. Mr. Kamps said after the initial beating he went to his bedroom to get some things and he could hear Mr. Pourier approach.
Mr. Kamps said he thought he was going to be attacked again, so he grabbed his gun and warned Mr. Pourier to stay away. He said Mr. Pourier dashed toward him and he shot him once or twice in the leg. Mr. Kamps claimed Mr. Pourier got up, and was warned again. He said Mr. Pourier advanced on him again until he was about four inches from the gun, and then he shot him until he went down.
On June 30, 2000, the jury found Mr. Kamps guilty of assault in the first degree, not guilty of assault in the second degree, and guilty of assault in the fourth degree. The jury also returned an affirmative special verdict on Mr. Kamps' use of a firearm in commission of the first degree assault. Mr. Kamps moved unsuccessfully for a new trial.
The trial court imposed a standard range sentence. Mr. Kamps appealed.
ANALYSIS
A. Pretrial Statements
The issue is whether the trial court erred by abusing its discretion in admitting at trial the pre
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