Saturday, October 23, 2010
Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Prosecution's Impeachment Of Own Witness Was Proper
Like its federal counterpart, North Carolina Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him. Rules such as North Carolina Rule of Evidence 607 were designed to replace the common law voucher rule, which held that a party, in effect, vouched for the credibility of the witnesses it called, meaning that it could not impeach them. A party, however, cannot call a witness for the sole or primary purpose of impeaching a witness, such as when a party calls a witness who it knows will not provide helpful testimony at trial so that the party can impeach the witness with a prior inconsistent statement that it helpful to the party. But how is a court supposed to decide when a party legitimately impeaches its own witness and when a party is using Rule 607 as a subterfuge for putting otherwise inadmissible hearsay before the jury? This was the question addressed by the recent opinion of the Court of Appeals of North Carolina in State v. Gabriel, 2010 WL 4068684 (N.C.App. 2010).
In Gabriel, Damien Lanel Gabriel was indicted on one count of first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. These crimes were committed at a house belonging to Dennis Brown.
At trial, the State called Brown to testify regarding the events leading up to, and immediately following, the shooting. Brown testified that he did not call Defendant on the day of the shooting and ask Defendant to bring a gun to Brown's house and also that he did not recall whether he saw Defendant enter Brown's house with a weapon immediately after the shooting. Because this testimony was inconsistent with Brown's prior statements to police, the State moved the court to allow the State to treat Brown as a hostile witness. After the court granted the motion over Defendant's objection, the State extensively cross-examined Brown on his prior statements. Brown denied telling police officers that he called Defendant to bring a gun and denied telling officers that he saw Defendant with a gun following the shooting.
The State later attempted to introduce a redacted version of a transcript of Brown's prior statements. Over Defendant's objection, the trial court ruled the statements admissible for the purpose of impeaching Brown's credibility.
After he was convicted, Gabriel appealed, claiming, inter alia, that the admission of Brown's out-of-court statements for the purpose of impeachment was error on the ground that "the prosecutor used the guise of impeaching its own witness as a subterfuge for putting otherwise inadmissible hearsay before the jury when the record failed to show the prosecutor was surprised by Brown's in-court testimony[.]" The Court of Appeals of North Carolina agreed with Gabriel that if this were what the prosecution did, its actions would have been improper, noting that in State v. Hunt, 378 S.E.2d 754 (N.C. 1989), the Supreme Court of North Carolina
acknowledged that the "overwhelming weight of federal authority with regard to the use of the identical Fed.R.Evid. 607 has long been that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible."...
The Court in Hunt further noted that
[i]t is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury. Circumstances indicating good faith and the absence of subterfuge in these exceptional cases have included the facts that the witness's testimony was extensive and vital to the government's case; that the party calling the witness was genuinely surprised by his reversal; or that the trial court followed the introduction of the statement with an effective limiting instruction.
The court, however, found that the case before it was one of these rare cases. According to the court,
the introduction of Brown's prior statements was preceded by a limiting instruction explaining to the jury that "the Court is allowing these exhibits to be admitted for one purpose and for one purpose alone, and that purpose is what is known as impeachment of certain testimony of the witness, Dennis Brown." These instructions are sufficient for the jury to distinguish this evidence as impeachment evidence, rather than substantive evidence.
Further,...in this case Brown's testimony was valuable to the State's case in that it described Brown's home and backyard in relation to the path through the woods leading to the shopping center where Defendant was spotted after the shooting, it laid the foundation for admission of Defendant's telephone calls from prison to Brown, and it corroborated other eyewitness testimony....
Finally, the facts of this case do not indicate...that "the state appeared to know before [the witness] was called to the stand that she would not cooperate by reiterating her prior statements."...In this case, while Brown's "lack of cooperation with the State and his failure to appear voluntarily until [ ] after being served with a show-cause order" certainly tend to show that Brown was reluctant to testify at Defendant's trial, there is nothing to indicate that the State knew Brown would refuse to testify to, or would testify inconsistently with, the matters contained in Brown's prior statement.