 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Davidson5/12/2000
>
2. The party against whom the evidence is offered had both opportunity and motive, similar to that at the case in controversy, to develop the proffered testimony.
See Tenn. R. Evid. 804(b)(1); State v. Bilbrey, 912 S.W.2d 187, 188 (Tenn. Crim. App. 1995). The definition of "unavailable witness" includes one who "demonstrates a lack of memory of the subject matter of the declarant's statement." See Tenn. R. Evid. 804(a)(3).
In the instant case, the witness testified on direct that he remembered nothing of the homicides, the interview, or the preliminary hearing. At the preliminary hearing, the defendant had opportunity and motive to cross-examine Cosby. See Tenn. R. Evid. 804(b)(1). Therefore, the testimony from the preliminary hearing, and the videotape of that hearing, is admissible.
Comprised within the prior testimony is the tape recording of the interview with officers. At that preliminary hearing, the witness heard and adopted the substance of the tape:
A . . . record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly,
See Tenn. R. Evid. 803(5). Such evidence therefore, would not be barred as hearsay.
The defendant asserts that the recorded statement was admissible only as a prior inconsistent statement with application limited to impeachment. See Tenn. R. Evid. 613. Under Rule 803(5), the admissibility of the audiotaped statement was not limited to impeachment purposes but may be substantive evidence. See Mitchell v. Archibald, 971 S.W.2d 25, 28 (Tenn. Ct. App. 1998). That evidence of the interview, however, should have been read into evidence and not entered as an exhibit. See Tenn. R. Evid. 803(5). We conclude that this error was harmless. See Tenn. R. Crim. P. 52(a); State v. Terry Dean Sneed, No. 03C01-9702-CR-00076 (Tenn. Crim. App. filed Nov. 5, 1998, at Knoxville).
Ricky Davidson
At trial, the state played a recorded statement of Ricky Davidson after the defense repeatedly asserted that the witness was coerced and intimidated into making statements. The defendant asserts error because in the recorded statement Ricky repeated his grandfather's statement to the witness's father. The defendant asserts that this constitutes hearsay within hearsay, not covered by any exception. Further, the defendant states that the probative value of those tapes, restricted to impeachment, would not outweigh the extreme unfair prejudicial effect to the defendant when the hearsay portion went to the ultimate issue at trial. Therefore, the defendant argues that Tennessee Rule of Evidence 403 should have excluded that evidence from trial.
We note that the record does not contain contemporaneous objection by the defendant at trial. That issue would therefore generally be waived. See Tenn. R. App. Pro. 36(a). However, a prior consistent statement is admissible when witness testimony is assailed or seriously questioned such that the witness's credibility needs "shoring up." See State v. Benton, 759 S.W.2d 427, 433-34 (Tenn. Crim. App. 1988). Such an impeaching attack may occur during cross-examination. See State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). Further, the trial court instructed the jury before and after the playing of that tape that it was not substantive evidence and addressed only the credibility of the witness, see State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982), and we presume the jury followed the instructions given them by the trial cou
Page 1 2 3 4 5 6 7 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|