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State v. Olivas1/13/1998
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A. Standard of Review
{23} The decision to allow admission of a witness's prior inconsistent statements rests in the sound discretion of the trial court. ; . The decision of the trial court to admit prior inconsistent statements will not be reversed absent an abuse of discretion.
B. Ramona's Testimony
{24} At the trial, Ramona's testimony was that Defendant did not hit Victor the day he died, but rather the child had fallen. This testimony differed from various statements that Ramona made to others that Defendant hit his son as punishment for spilling milk, that Defendant punched and hit his son on the back of the head, and that Defendant "killed my jito."
{25} The State questioned Ramona about these previous statements which conflicted with her testimony on the stand. Because these prior inconsistent statements were not made under oath and subject to the penalty of perjury, they were not introduced as substantive evidence. See Rule 11- 801(D)(1)(a), NMRA 1997. The statements were, however, properly used as impeachment evidence to challenge Ramona's credibility and the credibility of her testimony at trial which exculpated Defendant. See Rule 11-613, NMRA 1997; see also ) (holding that impeachment of a witness through a prior inconsistent statement "allows a jury to Judge the weight to be given to the testimony of the witness").
{26} Defendant argues that the statements should not have been used because of their "patently unreliable nature." Defendant explains that the statements were made in the middle of the night when Ramona was threatened by the investigating detective with the possibility of arrest and of not attending her child's funeral if she did not change her story. To the extent that these statements may have been unreliable in light of the circumstances in which they were made, this was a matter for trial counsel to explore on cross examination of the witness. In this case, Defendant's counsel questioned Ramona regarding the circumstances in which she made these statements. Defense counsel also argued the unfairness of the detective's interrogation methods during his closing argument. We conclude that these challenges to the circumstances under which Ramona's statements were made were sufficient to point out their possible unreliability, and we hold that the circumstances on which Defendant relies go to the weight, and not necessarily the admissibility, of the statements. See (where voluntariness of statements is properly raised, court initially determines voluntariness and then submits statements to jury for it to consider voluntariness, as well as weight to give statements).
C. Closing Argument
{27} Defendant next argues that the State improperly used Ramona's prior inconsistent statements as substantive evidence during closing argument. However, Defendant did not timely object and failed to preserve this issue for appeal. See (defendant's failure to object to prosecutor's improper remark cannot be used as a basis to overturn defendant's conviction); ("Unless a prosecutor's remark constitutes fundamental error, review by an appellate court must be predicated upon a timely objection by a defendant.").
{28} Furthermore, we conclude that the State's arguments do not rise to the level of fundamental error. See (doctrine of fundamental error applied to excuse failure to make proper objection below only if innocence of defendant appears indisputable or if question of guilt is so doubtful that it would shock the conscience of the court to permit the conviction to stand). Though the evidence was conflicting, there was substantial evidence that Defendant intentionally struck the blow to
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