Kennedy v. State

42 S.W.3d 407, 344 Ark. 433, 2001 Ark. LEXIS 241
CourtSupreme Court of Arkansas
DecidedApril 19, 2001
DocketCR 00-1250
StatusPublished
Cited by28 cases

This text of 42 S.W.3d 407 (Kennedy v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. State, 42 S.W.3d 407, 344 Ark. 433, 2001 Ark. LEXIS 241 (Ark. 2001).

Opinions

DONALD L. Corbin, Justice.

Appellant Michael Drew Kennedy was convicted in the Van Buren County Circuit Court of first-degree battery and sentenced to ten years’ imprisonment. Appellant appealed his conviction to the Arkansas Court of Appeals, asserting that the trial court erred when it allowed a prior statement given by an eyewitness to be read into evidence by the police officer who took the statement. In a 4-2 decision, the court of appeals affirmed the judgment of conviction. See Kennedy v. State, 71 Ark. App. 171, 27 S.W3d 467 (2000). We granted Appellant’s petition for review, pursuant to Ark. Sup. Ct. R. l-2(e)(ii). We affirm.

The record reflects that on July 27, 1997, around 2:30 a.m., a fight occurred outside the 659 Club, in Choctaw, Arkansas. The fight was primarily between Appellant and Lanny Bates, although there was testimony that Appellant’s friend, Rodney Brown, was also involved. As a result of the fight, Bates received multiple knife wounds to his back, neck, throat, and face. Appellant received a cut on his hand. Bates was taken by ambulance to a nearby hospital and later air-lifted to UAMS in Little Rock. Appellant was subsequently arrested and charged with first-degree battery. No other arrests were made. At trial, Appellant claimed that he had acted in self-defense and that Bates was the initial aggressor. Appellant admitted that he had cut Bates two times in the back with his knife; however, he denied making any of the other cuts to Bates.

The State presented testimony from numerous persons who witnessed the fight. Only two of the State’s witnesses, Bates and Kim Kennedy, had knowledge as to how the fight started. Kim, who is the wife of Appellant’s first cousin, Mark Kennedy, gave a statement to Arkansas State Police Investigator Ross Dean, approximately one week after the fight. Kim told Dean that Appellant had started the fight, and that he had a knife in his hand. At trial, however, Kim did not recite the incident as she had to the police. Instead, she claimed that she could not recall much of the details about the fight. Specifically, Kim testified that she could not remember who started the fight or whether Appellant had a knife. When pressed by the prosecutor, she offered the excuse that she had been pregnant at the time and had been fighting with her husband. She also stated that she was nervous. When questioned about specific statements that she had made to police, Kim repeatedly claimed a lack of memory.

After Kim was excused from the witness stand, the prosecutor recalled Dean and asked him to tell the jury what Kim had told him. Defense counsel objected to the testimony on the ground that it was hearsay. A hearing was then held outside the presence of the jury. The prosecutor argued that he should be permitted to impeach the witness with her prior inconsistent statements. Defense counsel countered that Kim’s inability to recall what happened was not inconsistent with her statements to Dean. Defense counsel further argued that the prior statements would be prejudicial to the defense, and that Appellant would be deprived of the opportunity to confront the witness if her statement was offered through the officer. The trial court allowed the testimony under Ark. R. Evid. 613(b) and this court’s holding in Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The trial court, however, did not allow the State to introduce the officer’s written report of the statements.

Thereafter, Dean read Kim’s statements to the jury. In pertinent part, Kim told the officer that she was in the parking lot of the 659 Club with her husband, Mark Kennedy, Bates, and another man. Kim saw Bates walk over to where Mark, Appellant, and Brown were standing. Kim followed Bates, but she could not hear what was being said, due to her hearing impairment. Kim saw Mark give Brown $10 to keep Brown from fighting him. Kim could not hear what Bates and Appellant were saying, but she observed a knife in Appellant’s right hand. Kim then saw Appellant hit Bates in the face with his fist. The next thing she saw was that the knife had switched from Appellant’s right hand to his left hand. She saw Bates fall to the ground, and she yelled for Mark to stop the fight. Mark declined, telling Kim that Bates had told him that he (Bates) could handle the fight himself. Kim then heard Bates call for Mark to help him. At that point, Mark grabbed Appellant and took him to his truck. Kim could see that Appellant had blood on his hand. When Bates, who was still on the ground, turned his head, Kim could see that his throat was cut.

In the court of appeals, Appellant argued that the trial court erred in allowing Kim’s testimony to be impeached with extrinsic evidence of her prior statements to Dean. Specifically, he contended that (1) Kim’s testimony was not inconsistent with her prior statements to police, as required by Rule 613(b); (2) Dean’s testimony of her prior statements was impermissibly used and considered by the jury as substantive evidence, in violation of Ark. R. Evid. 801(d)(1)(i); and (3) he was denied his right to confront the witness because her prior statements were admitted through the testimony of Dean. The court of appeals rejected Appellant’s arguments, relying entirely on this court’s holding in Chisum, 273 Ark. 1, 616 S.W.2d 728. The dissent, on the other hand, concluded that Chisum was not applicable and had been limited in its scope by this court’s holding in Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). We granted Appellant’s petition for review in order to clarify any perceived inconsistencies in this court’s decisions. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).

For purposes of clarification, we note that Appellant does not argue that it was error to allow the prosecutor to impeach Kim’s testimony during his direct examination of her. Indeed, the record demonstrates that Appellant did not object to the prosecutor’s questions to Kim about her prior statements to Dean. Thus, Appellant is not challenging the use of intrinsic evidence to impeach the witness. Rather, he argues only that it was error for the trial court to allow impeachment by extrinsic evidence, i.e., Dean’s testimony of her prior statements. We discuss the points on appeal separately.

I. Admissibility of the Prior Statements under Rule 613(b)

Appellant first argues that the witness’s lack of memory did not render her testimony sufficiently inconsistent with her prior statement to police. Correspondingly, he asserts that because her statements were not inconsistent with her testimony, the trial court erred in allowing the prosecutor to present extrinsic evidence of her prior statements. We disagree.

A. Degree of Inconsistency Required

The first issue we must resolve is whether Kim’s professed lack of memory of the particular details of the incident rendered her trial testimony inconsistent with her prior statement to police. This court has previously recognized that an “ ‘inconsistent statement’ as used in Rule 613, is not limited to those instances in which diametrically opposite assertions have been made.” Roseby v. State, 329 Ark.

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Bluebook (online)
42 S.W.3d 407, 344 Ark. 433, 2001 Ark. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-state-ark-2001.