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Lancaster v. State3/28/2002
nts made on appeal. This step is necessary because this Court generally will not consider issues which are raised for the first time on appeal unless they are jurisdictional or of a fundamental nature. Bell v. State, 994 P.2d 947, 957 (Wyo. 2000). Consequently, we must next determine whether the appellant's stated issues on appeal are the same as those he raised at trial.
[ ] In his appellate brief, the appellant finds fault with the admission of the videotape on three grounds: (1) the videotape is an inconsistent, rather than a consistent, statement; (2) prior consistent statements should not be admissible where there has only been general impeachment as to credibility rather than an allegation of recent fabrication or improper motivation; and (3) the videotape violated W.R.E. 403 in that it was more prejudicial than probative. We find that, though they are stated somewhat differently than stated by trial counsel, these are the same issues raised at trial. *fn8
[ ] Resolution of the specific question before this Court--whether the videotape should have been admitted--must begin with a recognition that the videotape does not meet the definition of "statement" found in W.R.E. 801(c) as interpreted by Humphrey, 962 P.2d at 871; Kolb, 930 P.2d at 1245; and Johnson v. State, 930 P.2d 358, 363 (Wyo. 1996). The videotape is not a "'single declaration or remark.'" Humphrey, 962 P.2d at 871 (quoting Kolb, 930 P.2d at 1245). There was no attempt to "break down the narrative and determine the separate admissibility of each 'single declaration or remark.'" Kolb, 930 P.2d at 1245 (quoting Phillips, 461 S.E.2d at 91). Indeed, the videotape is not even limited to being the "report or narrative" of Hanson. It is, in the main, a re-enactment of the crimes, done to show how the crimes were committed. This is certainly more than a consistent statement introduced only to rebut impeachment of credibility. *fn9
[ ] The second problem with the admission of the videotape is that the trial court did not engage in any analysis under W.R.E. 403 to determine whether the videotape was more probative than it was unfairly prejudicial. The State offered the videotape for the limited purpose of rehabilitation; that is, it was offered as proof that Hanson's in-court testimony should be believed because he had made a consistent statement in the past. In making the offer of the videotape, however, the prosecutor made no effort to identify anything in particular contained on the videotape that was consistent with anything in particular from Hanson's in-court testimony. Surely, if a statement is to be admitted into evidence because it is consistent with in-court testimony, the trial court must make the preliminary determination that the statements are, indeed, consistent. This requires some amount of specificity. That did not happen here. We are left to speculate as to the probative value of statements that have not been identified.
[ ] The same deficiency exists with regard to the lack of any analysis of the videotape's potential for unfair prejudice. In a case involving the admissibility of a videotape of a defendant's statement to the police, the Supreme Court of Georgia approved introduction of the videotape, but only because of the trial court's careful exercise of its discretion:
Where evidence is challenged on the ground that its probative value is out-weighed by its tendency to unduly prejudice the jury, the trial court must exercise its discretion in determining admissibility. Smith v. State, [255 Ga. 685, 341 S.E.2d 451 (1986)]. We find no abuse of discretion in this instance. . . . The trial court went through each page of a transcript of the videotaped interview before it was heard by the jury an
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