☢ test - Í
prior statement, that statement is inadmissible as a prior inconsistent statement. [footnote 1: See Johnson v. State, 255 Ga. 552, 556(4)(a) (341 S.E.2d 220) (1986); Hill v. State, 250 Ga.App. 897, 902(1) (553 S.E.2d 289) (2001). We further note that the language in Hill suggesting that a prior inconsistent statement is inadmissible even where the witness’ lapse in memory is clearly contrived is mere dicta and thus not binding. See State v. Kell, 276 Ga. 423, 425 (577 S.E.2d 551) (2003).] Where, however, the witness provides relevant testimony that tends to contradict the prior statement, such prior inconsistent statement is properly admitted as substantive evidence.” Accord, Buchanan (November 7, 2006), above. Hambrick v. State, 278 Ga.App. 768, 629 S.E.2d 442 (March 14, 2006). “‘[T]he prior inconsistent statement of a witness is admissible as substantive evidence if the witness testifies at trial and is subject to cross-examination. [Cits.]’ Kinney v. State, 271 Ga. 877, 880(2) (525 S.E.2d 91) (2000). Here, as in Kinney, the victim’s statements to doctors, a nurse, rape counselors, and her mother were corroborated by the physical evidence of her extensive injuries. Id. ‘[E]ven though a witness may recant on the stand, [her] prior inconsistent statements constitute substantive evidence on which the jury may rely.’ (Citation and footnote omitted.) Gunsby v. State, 248 Ga.App. 18(1) (545 S.E.2d 56) (2001).” Accord, Williams v. State , 280 Ga. 539, 630 S.E.2d 410 (May 18, 2006); Atkinson v. State , 280 Ga.App. 635, 634 S.E.2d 828 (July 25, 2006) (jury could credit witness’s pre-trial statement that defendant sold him prescription drugs over witness’s testimony that defendant gave him the pills for free); Wheeler v. State , 281 Ga.App. 158, 635 S.E.2d 415 (August 17, 2006); Buice v. State , 281 Ga.App. 595, 636 S.E.2d 676 (August 29, 2006); Meeks v. State , 281 Ga.App. 334, 636 S.E.2d 77 (August 29, 2006); Whitley v. State , 307 Ga.App. 553, 707 S.E.2d 375 (January 19, 2011); Robinson v. State , 314 Ga.App. 545, 724 S.E.2d 846 (March 2, 2012); Martinez v. State , 314 Ga.App. 551, 724 S.E.2d 851 (March 2, 2012); Skipper v. State , 314 Ga.App. 870, 726 S.E.2d 127 (March 16, 2012). Lewis v. State, 278 Ga.App. 160, 628 S.E.2d 239 (March 10, 2006). “‘The prior inconsistent statements of [D.B.] were admissible as substantive evidence of the guilt of the [defendant]. A prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value to impeachment purposes. The jury was thus authorized to believe [D.B.’s] prior inculpatory statements rather than her present exculpatory testimony. If, from all that the jury see of the witness, they conclude that what she says now is not the truth, but what she said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.’ (Citations and punctuation omitted.) Brown v. State, 175 Ga.App. 246, 247(1) (333 S.E.2d 124) (1985).” Accord, Schlau v. State , 282 Ga.App. 460, 638 S.E.2d 895 (November 17, 2006); Andrews v. State, 275 Ga.App. 426, 620 S.E.2d 629 (September 8, 2005). Aggravated stalking and related convictions affirmed. Victim’s pre-trial statements to police were sufficient to convict defendant. “This is true even in cases in which the victim recants her previous accusation against the defendant. [Cits.] The reason for this rule is that a victim’s prior inconsistent statements are admissible as substantive evidence for the jury’s consideration. [Cit.] Thus, a ‘jury [is] authorized to believe the victim’s pre-trial statements rather than her in-court disavowal.’ Lee v. State, 250 Ga.App. 110, 111(1) (550 S.E.2d 696) (2001). In this case, a rationale [sic] trier of fact could have found that the victim recanted her pre-trial outcry statements based on her self-described status as his current girlfriend, the abusive nature of their relationship, or even out of fear of retaliation from Andrews.” Accord, Leonard v. State , 279 Ga.App. 192, 630 S.E.2d 804 (May 4, 2006); Love v. State , 293 Ga.App. 499, 667 S.E.2d 656 (September 4, 2008); Boone v. State , 293 Ga.App. 654, 667 S.E.2d 880 (September 23, 2008); Galvan v. State , 330 Ga.App. 589, 768 S.E.2d 773 (February 4, 2015). Wilson v. State, 277 Ga. 114, 587 S.E.2d 9 (September 22, 2003). Witness, an inmate under felony sentence, gave police a statement implicating defendant in a murder. At trial, however, after answering initial questions identifying himself, witness refused to answer questions about the statement he gave police and denied making any statement. Witness refused to answer any more questions for state or for defendant. State then tendered the videotape of the statement. Held, trial court properly admitted videotaped statement as an inconsistent prior statement. Witness’s “blanket denial that he had spoken with police was wholly inconsistent with his entire videotape statement, and therefore, the videotape statement was admissible. (Cits.) The claim that Wilson’s right of confrontation was violated likewise fails. ‘Even if a hearsay declarant is not subject to cross-examination at trial, the admission of the declarant’s out-of-court statement does not violate the defendant’s right of confrontation if the declarant’s out-of-court statement meets the requirements of a firmly rooted exception to the hearsay rule.’” Not clear what the ‘firmly rooted hearsay exception’ is in this case – prior inconsistent statement rule? Justices Fletcher and Benham dissent, saying witness’s testimony was not inconsistent with the substance of the prior statement, citing Barksdale v. State , 265 Ga. 9, 453 S.E.2d 2 (1995). Distinguished, Soto (May 4, 2009), above (witness refused to testify, was never asked whether he made prior statement to fellow prisoner).
Made with FlippingBook Ebook Creator