Willis v. State

In Willis v. State, 46 P. 3d 890, P20 (Wyo. 2002), in which the defendant was convicted of felony larceny by bailee for selling three horses entrusted to his care, the trial court allowed the State to present witness testimony concerning the out-of-court statement of another witness the State previously called to testify. After the first witness, Ms. Willis, testified that she could not remember what happened to the three horses and denied previously stating they were sent to auction, the State called the second witness, Ms. Holland, who testified Ms. Willis told her that the horses were sent to auction. The Court said: "Prior inconsistent statements are admissible under W.R.E. 613(b) to impeach by contradiction a witness' trial testimony. W.R.E. 613(b) provides: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require." This rule applies when two statements--one made at trial and one made previously--are irreconcilably at odds. In such an event, counsel is permitted to show the discrepancy by extrinsic evidence, if necessary. United States v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999). The purpose of this type of impeachment evidence is to show a witness to be generally capable of making errors in his testimony. 3A John Henry Wigmore, Evidence 1017 (Chadbourn rev. 1970). In doing so, counsel can resort to the witness' own prior statements in which that witness has given a contrary version. Id." The Court stated further: "Prior statements made by a witness are not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statements. W.R.E. 801(d)(1). The use of a prior inconsistent statement is not inadmissible hearsay because it is not offered for the truth of the matter asserted. Rather, it is used as a tool to compare both statements and conclude that the declarant has erred in making one or the other without determining which statement is erroneous. 3A John Henry Wigmore, Evidence 1018 (Chadbourn rev. 1970)." Applying these principles to the facts in Willis, the Court concluded: "Ms. Holland's testimony properly falls within the scope of the Wyoming Rules of Evidence. The state asked Ms. Willis whether she could recall previously stating the three mares were sent to the auction. She was afforded an opportunity to explain or deny the prior inconsistent statement and denied ever making such a statement or knowing what ultimately happened to the horses. The defense then had full opportunity to explore the issue during her cross-examination. Next, the state used extrinsic evidence--Ms. Holland's testimony--to impeach Ms. Willis. Ms. Holland testified that Ms. Willis stated the three mares were sent to the auction. The state was entitled to introduce prior statements made by Ms. Willis that were inconsistent with her trial testimony. Therefore, we conclude the trial court did not abuse its discretion in permitting the impeachment evidence."