EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, August 21, 2011

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Impeachment Of Reluctant Witness Fine Under Rule 607

North Carolina Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling him." That said,  courts have consistently ruled that such impeachment is impermissible where it is used as a mere subterfuge to present evidence to the jury that is otherwise inadmissible. So, let's say that the prosecution knows that it has a reluctant witness who is only testifying because he was subpoenaed and advised that he would be arrested if he failed to appear at trial. Can the prosecution call this witness and then impeach him with statements that incriminate the defendant? According to the recent opinion of the Court of Appeals of North Carolina in State v. Austin, 2011 WL 3570111 (N.C.App. 2011), the answer is "yes," at least based upon the facts before it.

In Austin, James Austin was convicted of first degree murder and attempted armed robbery based upon a shooting outside of a Busy Mini Mart on December 6, 2006. At trial,

The State called defendant's friend, Rodney Morrison, who stated that he had seen defendant at the Busy Mini Mart on 6 December 2006. Morrison was asked whether defendant had a gun that evening, if defendant discussed robbing anyone, and whether he found a shell casing at the Busy Mini Mart after the shooting. Morrison generally said he did not remember or did not recall the answers to any of these questions. The trial court then conducted a voir dire of Morrison. Morrison testified that he did not remember talking to police on 13 December 2006, and he refused to say whether the voice played on a recording from that meeting was his. Morrison further testified during the voir dire that he did not remember being in the prosecutor's office and pointing out the spot on a map where he found a shell casing. He also testified that he did not remember receiving threats from individuals who did not want him to testify against defendant

The State then presented voir dire testimony from Detective C.M. Hopkins, who interviewed Morrison on December 13, 2006.

Detective Hopkins testified that Morrison told her that he saw defendant at the Busy Mini Mart on the day of the shooting, that defendant showed him a handgun, and that defendant told him that he was going to rob someone. She also testified that Morrison gave her a shell casing that he found behind the Busy Mini Mart.

Based upon the testimony by Hopkins and another witness, the trial court determined that Austin could be-recalled and impeached through prior inconsistent statements that he made during the prior interview. Thus, the State impeached Morrison with his prior statement when he

was again questioned in front of the jury following the voir dire proceedings. He testified that he, defendant, and Dwayne Stowe were all at the Busy Mini Mart on the day of the shooting, but he could not remember whether defendant had a gun or mentioned a plan to rob anyone. He also testified that he could not remember finding the shell casing, nor could he remember if defendant was wearing a camouflage jacket. Morrison claimed that he did not remember meeting or giving a statement to Detective Hopkins prior to the trial. Throughout his testimony, Morrison said that he was not necessarily denying that he made those statements to police, just that he did not remember making them. Specifically, Morrison stated: "I'm not saying I didn't say it. I don't remember saying it."

After he was convicted, Austin appealed, claiming that the impeachment of Morrison was mere subterfuge to get his prior inconsistent statements before the jurors in the hope that they would use them as substantive evidence of Austin's guilt rather than merely as impeachment evidence. The Court of Appeals of North Carolina disagreed, finding that

the State subpoenaed Morrison to appear in court and knew that he was reluctant to testify, but, as the State argues, there is no evidence suggesting that he would suddenly claim to have no knowledge concerning the events of 6 December 2006. In fact, when Morrison met with Detective Vinson in March 2010, just a month before trial, he gave no indication that he had trouble remembering what happened on 6 December 2006. During the interview, Morrison remembered where he found the shell casing and that he told defendant not to rob anyone.

Based on these facts, we hold that the trial court did not abuse its discretion when it ruled that "based on the voir dire,...Mr. Morrison's testimony is obviously other than what the State had a reason to expect ... and that the State has a right to impeach him." 



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