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State v. Garrett12/1/2005
squatted down on side D.
Q: So you're indicating on the left corner of side A.
A: Yeah.
Q: And so that's the side where you saw what?
A: Where I seen [the defendant] squatted down.
Q: And can you demonstrate for the jury, if you can step out of your witness box for a moment, and demonstrate how you saw him by the tree?
A: (Whereupon witness complies.)
Q: Okay. Okay. Thank you. Did you eventually go to where [the defendant] was standing or squatting?
A: He was standing by the time I got over there.
Q: And did you seen him do anything else at that point?
A: I seen my dad, when my dad got over there, when my dad got about to the sidewalk and he got up and grabbed the chair, a lounge chair I think it was, and busted out a window.
The defendant asserts that Bobby Alcorn's first and second trial testimonies conflict because Bobby Alcorn testified at the first trial that the defendant was breaking windows and yelling for the victim when he first saw him but testified at the second trial that the defendant was "squatted down" by a tree while his house was burning when he first saw the defendant. The defendant further asserts that the state knew or should have known that it was soliciting false testimony from Bobby Alcorn. The state counters that Bobby Alcorn's testimonies are not contradictory and that the alleged inconsistency is the result of the witness's response to two different questions. Specifically, the state asserts that at the defendant's first trial, when asked, "What was the first thing you saw Claude Garrett do when you came upon the scene?", Mr. Alcorn responded that the defendant was "at the window," breaking it. At the second trial, Mr. Alcorn clarified that while he was still at his house before he crossed the street to the defendant's house, he looked across the street and saw the defendant squatting by a tree. We agree with the state that the difference in the two testimonies is primarily attributable to the defendant's responses to different questions. We recognize, however, that in the first trial, Bobby Alcorn testified that when he first viewed the defendant's house from inside his house, he reported seeing the house on fire but did not refer to seeing the defendant squatting by a tree. We conclude that this discrepancy may represent more of a shift in emphasis than an actual contradiction, and at any rate, there is no indication that the second trial testimony was false or that the state presented testimony that it knew to be false.
B. James Cooper
Next, the defendant complains that James Cooper, who was a special agent with the Bureau of Alcohol, Tobacco, and Firearms (ATF) and who investigated the instant crime, testified falsely at his second trial that he interviewed a firefighter about whether the door to the utility room where the victim was found was latched when the firefighters entered the house. The defendant presents the following testimony in support of his argument:
[From the first trial:]
Q: Did you talk with the fire department to determine how much of the house they tore up, and how much was like that already, and how much the fire might have done[?] Can you just tell from looking at it what the fire department tore out?
A: I did not talk to any firefighters that actually suppressed the fire. Again, they weren't there at the scene and I was just there to determine the cause and origin of the fire. If they're normally there, yes, we would interview them, again, how they attacked the fire and so forth.
Q: So you didn't ask anybody specifically, did
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