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Lancaster v. State3/28/2002
(24) and 804(b)(6).
[ ] In the instant case, we are concerned with W.R.E. 801(d)(1)(B), which reads as follows:
(d) . . . A statement is not hearsay if:
(1) . . . The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (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[.]
[ ] The focus of W.R.E. 801(d)(1)(B) is the use of a prior consistent statement as rehabilitation of a witness whose credibility has been impeached in the particular manner described in the rule. Because of the limited purpose for which the statement may be offered, the party contesting admission of the statement is entitled to a limiting instruction to that effect. *fn5 W.R.E. 801(d)(1)(B) removes from the hearsay category only a prior consistent "statement," as that term is defined in W.R.E. 801(a): "A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion." As so defined, "statement" refers to a "'single declaration or remark'" rather than a "'report or narrative.'" Humphrey v. State, 962 P.2d 866, 871 (Wyo. 1998) (quoting Kolb v. State, 930 P.2d 1238, 1245 (Wyo. 1996), cert. denied, 531 U.S. 839 (2000)). It is necessary, therefore, to "break down the narrative and determine the separate admissibility of each 'single declaration or remark.'" Kolb, 930 P.2d at 1245 (quoting State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75, 91 (1995)). *fn6
[ ] The United States Supreme Court has interpreted the federal rule upon which W.R.E. 801(d)(1)(B) is based as allowing prior consistent statements into evidence only when the statement was made before the motive to fabricate or the improper influence occurred. Tome v. United States, 513 U.S. 150, 165, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). In the past, this Court interpreted W.R.E. 801(d)(1)(B) in the same way. Chambers v. State, 726 P.2d 1269, 1273 (Wyo. 1986). We have since receded from that conclusion, holding instead that since there is no such temporal condition in the rule, it should be left to the discretion of the trial court whether a particular statement should be admitted. Makinen v. State, 737 P.2d 345, 349 (Wyo. 1987). With some lack of unanimity, we have continued to apply the Makinen holding. Beartusk v. State, 6 P.3d 138, 145 (Wyo. 2000); Dike v. State, 990 P.2d 1012, 1024 (Wyo. 1999), cert. denied, 529 U.S. 1078 (2000). In departing from federal precedent, this Court emphasized the inherent difficulty in determining when an improper motive may have arisen, and chose to leave such matters to the trier of fact. Makinen, 737 P.2d at 349.
[ ] W.R.E. 801(d)(1)(B) has four requirements: (1) that the declarant testify at trial; (2) that the declarant be subject to cross-examination concerning the prior statement; (3) that the prior statement be consistent with the declarant's trial testimony; and (4) that the prior statement be offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Evidently because the first two requirements have not been problematic, appellate review has focused on the consistency and rebuttal issues. In Curl v. State, 898 P.2d 369, 374 (Wyo. 1995), we reiterated what "consistent" means under Wyoming's rule:
Curl correctly points out that statements must be "consistent" to merit admission under W.R.E. 801(d)(1)(B). Montoya v. State, 822 P.2d 363, 368 (Wyo.1991). However, little supportive case law and less logic is offered to bolster his argument that consistency requires a virtual identity or con
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