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State v. Hamilton4/12/2002
eat." When confronted with these inconsistencies on cross-examination, she stated that "I think I said he was going to get a bite to eat and get his stuff ready for work. That's what he usually did."
The defense moved the court to admit Ms. Lawrence's statement to the police. The trial court did not admit this statement. Since this statement contained prior inconsistent statements of a witness, Evid.R. 613 is controlling and states:
"(B) Extrinsic evidence of prior inconsistent statement of witness
"Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:
"(1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;
"(2) The subject matter of the statement is one of the following:
"(a) A fact that is of consequence to the determination of the action other than the credibility of the witness;
"(b) A fact that may be shown by extrinsic evidence under Evid.R. 608(A), 609, 616(B) or 706;
"(c) A fact that may be shown by extrinsic evidence under the common law of impeachment if not in conflict with the Rules of Evidence."
Subpart (B)(1) was met, as Ms. Lawrence was given an opportunity to explain the inconsistencies during cross-examination. Subparts (B)(2)(b) and (c) are not relevant in this case.
The admissibility of this statement turns on whether subpart (B)(2)(a) has been met. The state argues that the sole consequence of admitting the statement was to attack the credibility of the witness. However, the subject matter of this statement has an additional consequence. Ms. Lawrence's testimony places the victim at her house at 8:30 p.m. If true, this directly contradicts the assertion defendant made in his police statement, that he last saw the victim at the victim's house at 8:30 p.m. The victim could not be both places at the same time. Therefore, if the jury believed Ms. Lawrence's testimony, it would have to disbelieve defendant's statement as to the last time he saw the victim. If the jury believed that the defendant gave a false statement to the police regarding his contact with the victim on the night the victim died, this would weigh heavily in favor of finding the defendant guilty.
Patrolman Simmons reduced the oral statement given by Ms. Lawrence to writing. At trial, the copy of this statement was unsigned. However, both Patrolman Simmons and Ms. Lawrence testified that she signed a copy. Patrolman Simmons also authenticated the document, by testifying that it was a true and accurate copy of the statement he took from Sandra Lawrence on the day in question. This was testimony of a witness with knowledge, which is one way to meet the authentication requirements of Evid.R. 901(A). See Evid.R. 901(B)(1). Ms. Lawrence also testified that this document was "pretty much" an accurate recording of the statement she gave to the police.
Since the document was properly authenticated, the only remaining issue regarding its admissibility is the "best evidence" rule. Generally, the original document is required. See Evid.R. 1002. However, an original is not required if it was in the possession of the opponent, the opponent was put on notice that the contents of it would be subject to proof at the hearing, and the opponent does not produce it. Evid.R. 1004(3). When the admissibility of this document was being argued outside the presence of the jury, defense counsel stated
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