☢ test - Í
him to do so and threatened to hold him in contempt. Later, the State was allowed to impeach Wiedeman through the testimony of a police officer and a fellow prisoner by introducing hearsay statements Wiedeman gave to those individuals.” Held, trial court erred in admitting Wiedeman’s hearsay statements, but error was harmless in light of overwhelming evidence of guilt. “ Generally, when a witness refuses to continue to testify after having already done so, the proper remedy is to strike pertinent portions of the witness' testimony. As it is said: “[W]hen a witness declines to answer on cross-examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness' testimony on the same subject matter should be stricken.” Smith v. State, 225 Ga. 328, 331 (168 S.E.2d 587) (1969). Thus, in this case, once Wiedeman refused to testify further about his and Soto's conduct on the night of the murder, the trial court would have been well advised to strike Wiedeman's testimony. However, neither party sought that remedy and the trial court was presented with only two alternatives: it could refuse to allow the State to impeach Wiedeman with his prior inconsistent statements or it could allow impeachment at the risk of impinging upon Soto's right of confrontation. Because it chose the latter course, we are faced with a difficult question: When, on direct examination, a witness gives testimony that exonerates a defendant, can the State introduce contradictory out-of-court statements to impeach him, when the statements inculpate the defendant and the witness refuses to answer further questions posed by either the State or the defendant?” As to statement to police: the statement was clearly testimonial, and defendant had no opportunity to cross-examine the witness. Admission of the statement thus violated defendant’s right to confront the witness. As to statement to fellow prisoner: not admissible as prior inconsistent statement for impeachment, because no opportunity for cross-examination, citing Barksdale v. State, 265 Ga. 9 (453 S.E.2d 2) (1995); not admissible under necessity exception because no guarantees of trustworthiness, as “the out-of-court statements of an accomplice are inherently unreliable. See Barksdale, supra at 12, n. 3.” Distinguishing Wilson v. State, 277 Ga. 114 (587 S.E.2d 9) (2003), where the witness denied making the prior inconsistent statement. In this case, to the contrary, Wiedeman was not asked, and he did not say, whether he made a prior statement to the prisoner.” Miller v. State, 292 Ga.App. 636, 665 S.E.2d 692 (May 2, 2008). Reversed on other grounds, 285 Ga. 285, 676 S.E.2d 173 (April 28, 2009) . Victim witness coordinator was improperly allowed to testify to victim’s statement that defendant was drunk when he hit victim. Statement was admitted as “prior inconsistent statement,” however, “[b]efore contradictory statements may be proved against [a witness], unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible,’ ” quoting OCGA § 24-9-83 . “See also Cummings v. State, 280 Ga. 831, 833(3) (632 S.E.2d 152) (2006). ‘It is not sufficient to ask merely whether the witness spoke to another person about a certain matter.’ (Citations omitted.) Hawkins v. State, 195 Ga.App. 739, 740(4) (395 S.E.2d 251) (1990). In this case, Goodrum was not asked at all about her statement to Falberg that Miller was drunk. Therefore, the state did not lay a proper foundation for the admission of the statement as a prior inconsistent statement.” Admission was harmless error, however. Accord, Edmond v. State , 283 Ga. 507, 661 S.E.2d 520 (May 19, 2008). Corn v. State, 290 Ga.App. 792, 660 S.E.2d 782 (March 21, 2008). Physical precedent only. Trial court properly allowed impeachment of defense witness based on his prior inconsistent statement to police (regarding his long friendship with defendant and their history of drug dealing). Byrum v. State, 282 Ga. 608, 652 S.E.2d 557 (October 29, 2007). Not error to allow State to impeach witness with his own videotaped prior statement to police where witness declined to review the videotape before trial. “Before impeaching a witness with a prior inconsistent statement, the cross-examiner must lay the proper foundation with the witness. OCGA § 24-9- 83. In laying the foundation, ‘the time, place, person, and circumstances attending the former statements shall be called to [the witness'] mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing.’ Id. ‘ The purpose of the foundation requirement is to give the witness an opportunity to admit, explain, or deny the prior contradictory statement.’ Duckworth v. State, 268 Ga. 566, 567-568 (492 S.E.2d 201) (1997). Here, through questioning by the State, Stready confirmed that on the day of his arrest he told police in a videotaped interview that [defendant] shot Tucker. Stready also testified that he declined the State’s offer to review the videotape before trial because ‘[he] made it.’ Both the State and defense counsel then questioned Stready about the inconsistencies between his statement to police and his in-court testimony. Under these facts, we find the time, place, and circumstances attending the former statement were established with as much certainty as possible, and the required foundation was made. See Meschino v. State, 259 Ga. 611, 613(2) (385 S.E.2d 281) (1989) (foundation laid for use of prior inconsistent statements where witness acknowledged making statement to agent after the crime). Although OCGA § 24-9-83 provides that written contradictory statements that are in existence shall be shown or read to the witness, there is no similar language requiring videotaped statements
Made with FlippingBook Ebook Creator