Impeachment: GRAY V. COM. (SC 10/19/2006)

Criminal – Discovery, Impeachment Evidence
DATE RENDERED: 10/19/2006
SC affirmed Defendant’s conviction and 45 sentence for murder.

During Crutcher’s testimony at trial, defense counsel attempted to introduce audiotaped statements that defense counsel and an investigator recorded in an interview they had with Crutcher in which she stated that she thought someone other than Defendant may have held the murder weapon in her apartment immediately after victim was shot and killed. From the record, it appears Defendant was attempting to impeach Crutcher’s testimony with these prior inconsistent statements when the Commonwealth objected on the grounds that this evidence was never disclosed to the prosecution pursuant to the reciprocal discovery agreement between the parties.

Upon sustaining the Commonwealth’s objection, the trial judge reminded defense counsel that he could ask the witness if she remembered making certain statements to him which may have implicated someone other than Defendant as the person holding the murder weapon. If the witness could not remember, the trial judge instructed defense counsel that he would then be prohibited from further questioning the witness and could not introduce the audiotaped statements because he had failed to comply with the reciprocal discovery agreement and because the proper foundation had not been laid.

Because the agreement only required Defendant to provide the Commonwealth with scientific results under RCr 7.24(3)(A)(i), the exclusion of Crutcher’s audiotaped statements was an abuse of discretion and erroneous. Despite finding the trial court erred in excluding this evidence, SC found the error to be harmless. Defense counsel’s failure to ask Crutcher whether she remembered making prior statements to him effectively waived any argument on appeal that the trial court’s exclusion of the evidence constitutes reversible error. Furthermore, by foregoing the opportunity to ask Crutcher about her prior statements and thus laying the proper foundation for introduction of her prior statements, Defendant cannot now complain that the trial court erred. In this vein, the trial court’s exclusion was proper, as Defendant failed to provide the proper basis for Crutcher’s prior statements to be admissible. KRE 801A; KRE 613. However, the trial court could not properly exclude these statements on the basis of a violation of the reciprocal discovery agreement as the agreement did not require Defendant to disclose the audiotaped statements, although any error in doing so was harmless.

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