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State v. Lotches12/29/2000
e has nothing further to say to the court." Defendant does not contend that the trial court should have allowed him to testify without restrictions. Under the circumstances, then, defendant waived his right to testify a second time at the conclusion of the trial. The trial court did not deny defendant his right to testify; there was no error.
VI. EVIDENTIARY MATTERS
Defendant makes seven different arguments concerning the trial court's assertedly erroneous admission or exclusion of evidence. For the reasons that follow, none of those arguments is well taken.
A. Exclusion of Audiotape
Defendant argues that the trial court erred in excluding an audiotape of an interview, which was offered to rehabilitate the credibility of a defense witness regarding the exchange of gunfire between defendant and Hall near Fourth and Alder. On the day after the shooting, the witness, Gates, told both a police investigator and a defense investigator, in separate interviews, that she was standing on the corner of Fourth and Alder Streets when she heard someone shout, "Oh, he's got a gun," that she then looked around, heard a gunshot, and,after hearing the gunshot, saw a man who later was identified as defendant pull a gun out of the back of his pants. During her examination at trial, however, Gates retreated from her prior statements. She testified that, on reflection, she was not absolutely sure whether she had heard the gunshot before or after she saw defendant pull out the gun. The trial court allowed defendant to introduce the notes of the police investigator who had interviewed Gates on the day after the shooting, which confirmed what Gates had told the investigator concerning the order of events. However, the trial court excluded an audiotape of Gates's interview with the defense investigator, in which Gates had conveyed the same information.
In a later discussion outside the presence of the jury, defense counsel argued that Gates's tape-recorded statement was admissible to rehabilitate her credibility and to substantiate her prior consistent statement.In response, the prosecution argued that Gates's tape-recorded statement was cumulative and irrelevant. The trial court ruled that, because Gates had testified at trial to the fact that she had told the police investigator and the defense investigator immediately after the event that she had heard the gunshot before seeing defendant pull out his gun, there was nothing to rehabilitate. The trial court did not permit the jury to hear the audiotape.
Defendant repeats in this court his argument that the trial court erred in excluding the tape, because the tape was admissible under OEC 801(4)(a)(B) as a prior consistent statement "offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive." At trial, Gates testified that she did not become unsure of her recollection until after she had been interviewed by the Deputy District Attorney in the case. Defense counsel argued that Gates's memory problem was a result of an improper motive stemming from pressure put on her by the prosecutor's office. Further, defendant now argues that, while the police report that was admitted gave a written version of her earlier statements, that report could not capture the demeanor evidence that defendant was attempting to elicit with the audiotape and, therefore, the audiotape was not merely cumulative of either Gates's prior trial testimony or of the report. Finally, defendant argues that the trial court's alleged error was not harmless, because it showed that decedent Hall fired at defendant first, before defendant pulled his gun from his pants,
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