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Lancaster v. State3/28/2002
gruence between the testimony of the principal witness and the subsequent statements.
Professor Mueller points out that "[w]hat seems important is that the exception should not be the means to prove new points not covered in the testimony of the [primary witness]." 4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 405 at 181 (2d ed. 1994). Professor Mueller notes that it is the consistency, rather than the substance of the consistent statement, which takes such a statement out of the realm of objectionable hearsay and tends to prove the value of the original statement. Id., § 406 at 194.
We have, essentially, embraced the foregoing theoretical framework, asserting that consistency itself is what removes such statements from the realm of inadmissible hearsay. Montoya, 822 P.2d at 368. Error, if any, may be considered harmless when the content of challenged consistent statements is clearly cumulative of prior testimony. Id. Logically, however, material information presented for the first time to support a prior "consistent statement" has no antecedent with which to be consistent or inconsistent and is, therefore, inadmissible. (Emphasis in original.)
[ ] The fourth requirement of W.R.E. 801(d)(1)(B) is that there must be an express or implied charge of recent fabrication or improper motive. Cook v. State, 7 P.3d 53, 58 (Wyo. 2000) (quoting Makinen, 737 P.2d at 349). The charge of fabrication or improper motive need not come only as a specific allegation during cross-examination; rather, it may be made by implication or innuendo, and it may be found in the "thrust" of the defenses and testimony presented. Alicea v. State, 13 P.3d 693, 698-99 (Wyo. 2000); Cook, 7 P.3d at 57-58. Further, it is not necessarily error that the prior consistent statement was received in evidence before the allegation of fabrication or improper motive. Humphrey, 962 P.2d at 872.
DISCUSSION
[ ] The appellant's Motion to Exclude Evidence referenced hearsay and W.R.E. 801(c). At the motion hearing, counsel stipulated that the videotape would be offered, if at all, only as "rehabilitation or a prior consistent statement . . .." As a result, the admissibility of the videotape is to be determined by reference to W.R.E. 801(d)(1)(B). When the videotape was offered at trial, defense counsel objected, and the following colloquy took place:
[DEFENSE COUNSEL]: Your Honor, at this particular point, I would again interpose my objection to using the videotaped interview, which we had made a liminal motion with respect to earlier and a motion to exclude evidence which was heard by the Court prior to trial.
This videotaped interview is an interview with Mr. Hanson, conducted by the police officers, in which Mr. Hanson does a re-enactment, basically, and a walk-through of the apartment on the 20 th . The Court sustained my objection to the use of this videotape. We would object to the use of the videotape.
The only possible way that it could be admitted would be to be admitted in part to talk about the single thing that I had asked him about, which is whether or not he had told the police about Mr. - about Mr. Penn sitting up, with blood on his cheek, prior to the time that he did the videotaped interview. And, basically, that was the only mention of the videotaped interview.
So with respect to the part in which he does obviously tell the detective about Mr. Penn sitting up, in the videotaped interview, that part might possibly be admissible; but the rest of it certainly is not admissible. And we object to the admission or the playing of that videotape interview in all or in part.
[PROSECUTOR]: Your Honor, as the Court recalls from the
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