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State v. Jones6/15/2000
R>
A.
Jones's first point of error concerns the use of prior consistent statements to rebut recent charges of fabrication. Jones argues that in each instance, the witness's statement was actually made after that witness had motive to fabricate. Specifically, Jones objected to the following testimony: (1) David Nordstrom's out-of-court statements to Toni Hurley and the police, introduced at trial through Hurley's testimony, (2) David Evans's out-of-court statements to detectives, introduced at trial through Detective Edward Salgado's testimony, and (3) Lana Irwin's out-of-court statements to the police, introduced at trial by Detective Brenda Woolridge.
Arizona Rule of Evidence 801(d)(1)(B) provides that an out-of-court statement is not hearsay if the declarant testifies at trial, is available for cross-examination, and the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." This rule requires the statement to have been made before the motive to fabricate arose:
The only way to be certain that a prior consistent statement in fact controverts a charge of "recent fabrication or improper influence or motive" is to require that the statement be made at a time when the possibility that the statement was made for the express purpose of corroborating or bolstering other testimony is minimized. State v. Martin, 135 Ariz. 552, 554, 663 P.2d 236, 238 (1983).
The timing requirement applies, regardless whether the witness is accused of recent fabrication, bad motive, or improper influence. See id. Thus, to determine admissibility, the court must decide (1) whose credibility the statement bolsters, and (2) when that particular witness's motive to be untruthful arose. In this case, because both David Evans's and Lana Irwin's prior statements were used to bolster their own testimony and were made before their motives to fabricate arose, they were properly admitted under Rule 801. David Nordstrom made his prior statements, however, after his motive to fabricate arose. Therefore, the trial court erred in admitting them.
First, Evans testified at trial that he had a conversation with Jones, in which Jones stated the police were on to him and knew that he had committed the murders. Evans also admitted he was receiving a plea bargain in two cases in exchange for his testimony. To rebut this motive to fabricate, the state questioned Detective Salgado concerning Evans's consistent statements to the police. Salgado testified that not only did Evans not ask for anything when he voluntarily contacted the police with the information, but that at the time of his original statements, he had not been arrested for any crime. During that original conversation with the police, Evans stated that Jones had admitted he needed to leave town because he had killed some people.
Evans was not, however, offered a deal to testify until later. Thus, he had no motive to fabricate this original statement, and it was admissible under Rule 801. When the defense objected at trial, the trial court determined the prior consistent statements were admissible because they aided the jury in determining Evans's credibility. Because the defense called Evans's credibility into question through its cross-examination, the prior consistent statements were made before his motive to fabricate arose, and the statements were used to bolster Evans's credibility, the trial court did not abuse its discretion in admitting them.
Second, Jones argues that the trial court improperly admitted Lana Irwin's prior consistent statements to the police, despite
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