Vincent M. Cooper v. State of Arkansas

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ar03-542

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

VINCENT M. COOPER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-542

April 14, 2004

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

[NO. CR-02-119-3]

HON. KIRK D. JOHNSON,

JUDGE

REVERSED AND REMANDED

John Mauzy Pittman, Judge

The appellant in this criminal case, Vincent Cooper, was charged with one count of aggravated robbery and one count of attempted aggravated robbery. After a jury trial, he was convicted of both offenses and sentenced to sixty years in the Arkansas Department of Correction. For reversal, appellant contends that the trial court erred in permitting the taped interview of Ramona Bailey to be admitted into evidence. We reverse and remand.

Appellant was charged with robbing a convenience store. Ramona Bailey, the mother of appellant's child, gave a taped statement after appellant's arrest that tended to implicate appellant in the crime. A particularly probative part of Ms. Bailey's taped statement related that appellant had been at her home shortly before the robbery, and that an ornamental candy cane that was found in her home broken, with a part missing, had not been broken the last time she had seen it. This was significant because the missing part apparently was used as a simulated firearm during the robbery.

At trial, Ms. Bailey stated that her taped statement was in error in that she did not tell Detective Ed Chattaway that the ornament had not been broken when she last saw it. In light of this contradiction, and several other inconsistencies between Ms. Bailey's taped statement and her trial testimony, the trial court allowed the tape to be played for the jury over appellant's objection.

The credibility of a witness may be attacked by any party, including the party calling the witness. Ark. R. Evid. 607. One method of impeachment of a witness is the use of a prior statement inconsistent with testimony at trial. Ark. R. Evid. 613. The trial court is vested with considerable discretion in determining where the line is drawn in the impeachment of a hostile witness and, on appeal, its rulings will be affirmed absent an abuse of that discretion. Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992).

Three requirements must be met under Ark. R. Evid. 613(b) before extrinsic evidence of a prior inconsistent statement will be admissible: (1) the witness must be given the opportunity to explain or deny the inconsistent statement; (2) the opposing party must be given the opportunity to explain or deny the witness's inconsistent statement; and (3) the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). When the witness admits to having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness's credibility. Id.

In the present case, the witness denied having made several statements in her taped interview that conflicted with her trial testimony. These inconsistencies involved matters, such as appellant's whereabouts and the condition of the candy cane ornament, that were important to the State's case; furthermore, there was no evidence in the present case that the State was aware before the trial that the witness had admitted making a prior inconsistent statement, and had admitted that that statement was false. The trial court was therefore not required to regard the requested admission of the taped statement as a mere "subterfuge" to secure the introduction into evidence of matters that were otherwise inadmissable. Compare Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). Rule 613(b) was complied with in that the witness was given an opportunity to explain the inconsistencies, and the opposing party was given the opportunity to interrogate the witness about the inconsistent statement and to explain or deny the inconsistent statement. The witness's explanation at trial of the inconsistencies implied that Detective Chattaway had somehow confused or deceived her during the taped interview. This explanation was not, strictly speaking, a denial of having made an inconsistent statement, but the right to impeach a witness by proof of contradictory statements is not conditioned on the witness's denial. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981) (quoting Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889)). What is significant is that, as in Chisum, supra, the witness in the present case did not admit to having made a prior inconsistent statement. Under these circumstances, the inconsistent statement was properly admissible.

Nevertheless, we agree with appellant that the trial court erred by permitting the taped statement to be introduced in its entirety. The taped interview included Ms. Bailey's statements that appellant used drugs, was a "crack head," and had been to the penitentiary. Ms. Bailey was not confronted with these statements and did not deny them, yet they were not redacted from her statement and were presented to the jury. Under the circumstances of this case, we believe the probative value of such testimony was far outweighed by the danger of unfair prejudice, and we hold that the trial court erred by allowing it into evidence. Roberts v. State, supra.

Reversed and remanded.

Robbins and Bird, JJ., agree.