Louis King CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
No. 1018-84.
Court of Criminal Appeals of Texas, En Banc.
Sept. 17, 1986.
The judgment of the court of appeals is affirmed.
TEAGUE, J., dissents.
John J. Browne (court appointed), Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Jan Krocker, Asst. Dist. Attys., Houston; Robert Huttash, State‘s Atty., Austin, for the State.
MILLER, Judge.
Appellant was indicted and convicted by a jury for the offense of murder. See
Appellant killed the deceased in appellant‘s front yard on Saturday night, July 2, 1983, by striking him in the head with a heavy object. The people at the scene and appellant‘s neighbors did not volunteer any information to the officers investigating the homicide. One month later, however, the police were informеd by the Crime Stoppers Program that Jackson was a witness, and Jackson subsequently gave statements to the police.
Jackson was the State‘s eyewitness at trial. She testified that she was on the porch of the house across the street when an argument began between appellant and the deceased, evidently over some lawnmowers belonging to the deceased that appellant had sold. Jackson stated that appellant was handling an iron bumper jack during the argument, and that when the deceased turned to walk away, appellant struck him from behind with the jack. The deceased started to turn and face appellant, when appellant struck him again in the forehead, fatally wounding him. Jackson testified that appellant then removed an envelope from the deceased‘s shirt pocket (the envelоpe purportedly contained money that the deceased had shown to appellant during the argument), went into his house to change his clothes, and left the scene.
Appellant and two eyewitnesses for the defense testified to a different version of the incident. They said that there was no argument about lawnmowers, that the deceased brandished a knife, that the blow was delivered by a piece of lumber that аppellant picked up in the yard in response to this provocation from the deceased, that the deceased was threatening to get a gun when appellant struck him (only once), and that they did not see Jackson around the scene at all. Appellant‘s entire case turned on self-defense, which his witnesses supported and Jackson refuted. The jury apparently believed Jackson.
After Jackson tеstified for the State on direct examination, the defense attorney opened a number of avenues of impeachment on cross and recross examination. Jackson testified that she had never been intimately involved with appellant, which was refuted by defense witnesses, that she had not been convicted of any crimes involving moral turpitude, which was refuted by a conviction for theft, and that she had never used the nаme “Broadway,” which was also refuted by the documents show
Jackson was later returned to the stand to rehabilitate herself by describing why she did not realize she had actually been convicted, and by stating that she did not think that thе defense attorney had used the exact name “Broadway” when questioning her on that issue. The State also elicited her testimony that she received the $400.00 from the Crime Stoppers Program in September, a month and a half after her initial statements to the police were made, and that she was not receiving any additional money for testifying at the trial.
Detective Osterberg, the last witness called, testified for the State on rebuttal. Over objection, he was asked about his three prior conversations with Jackson that began with her approaching him through Crime Stoppers. He testified that she said the “same things” in each conversation or statement, and that “[s]he has never changed her story. It has always been the same.”
During closing argument, the defense attorney referred to Jackson as “the four hundred dollar witness,” and said, “here they want you to believe a woman who a month later turns in a man for four hundred dollars....” The prosecutor responded in closing argument by stating that Jackson was a believable witness because “she told Detective Osterberg the same thing each time she talked to him.” Defense counsel‘s objection to this statement was sustained over the prosecutor‘s argument that what the prosecutor alluded to was in evidence.
Appellant‘s grounds of review numbers four and five complain that the Court of Appeals erred: (a) in holding that the prosecutor‘s bolstering of Jackson was not improper and did not constitute reversible error; and (b) in holding that the trial court‘s admission of evidence over objection of Jackson‘s prior consistent statements, when no predicate had been laid for the admission of such evidence, was proper. In response to thе latter, we must answer two questions regarding the admissibility of prior consistent statements:
1) whether the predicate for such statements was laid in this case; and
2) whether such statements were admissible although they were made at a time when the motive to fabricate was present.
The prevailing rule for criminal cases in Texas is set out in Rains v. State, 146 S.W.2d 176, 178 (Tex.Cr.App.1940):
“In Browney v. State, 128 Tex.Cr.R. 81, 79 S.W.2d 311, 315, the rule is stated as follows: ‘It is well settled that where a witness has been impeached by showing that he made other and different statements in regard to the matter than those testified to by him on trial, he can be supported by showing that he made similar statements to those testified to by him recently after the occurrence. However, if the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is inadmissible.‘”
On Motion for Rehearing, this Court in Rains, supra, thoroughly reviewed Texas precedent, found that the above-stated rule has been consistent from the beginning, and reaffirmed it. Id. at 179-180.
Under this rule, appellant makes a strong case on both counts: that there was no predicate laid that Jackson made prior inconsistent statements, which would open the door to evidence of prior consistent statements; and that the prior consistent statements about which evidence was admitted were made at a time when the motive to fabriсate—the reward money—existed.
The Court of Appeals found against appellant on both issues. It held that the defense challenged Jackson‘s credibility by “implying that she had fabricated her story to collect the Crime Stoppers’ reward and to get even with the appellant.” Campbell, supra at 5. It continued, “[a]lthough
With regard to the second question, admissibility of the statement after the predicate is laid, our holding on this issue follows the precedent set out in Rains, supra at 178.
“‘... [I]f the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is inadmissible.‘”
Prior consistent statements then are not admissible if they were made after the motive for fabrication came into existence.
It is appropriate at this juncture to examine the continued viability of Rains, supra, in light of the recent promulgation of new rules of evidence in Texas. On December 18, 1985, this Court promulgated the new Texas Rules of Criminal Evidence [cited as
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,....
This rule is simply a codification of well established Texas caselaw.* Under the
With regard to the second question, thе admissibility of the statement vis-a-vis the motive to lie, we note at the outset that
Federal courts intеrpreting the identical language have tended to incorporate the requirement of absence of motive to fabricate, the leading case being United States v. Quinto, 582 F.2d 224 (2nd Cir.1978). The court‘s discussion in Quinto, supra, of the rationale for this rule is helpful to our analysis:
“The rationale for excluding most, but not all, prior consistent statements being offered to establish the witness‘s credibility is one of relevance. ‘The witness is not helped by [the prior consistent statement] even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it.’ ... ‘Prior
consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive.’ ... But the prior consistent statements have been so admissible only when the statements were made prior to the time the supposed motive to falsify arose.... Only then was the prior consistent statement ‘relevant’ on the issue of credibility; that is, it tended to make the trustworthiness of the witness‘s in-court testimony more probable, after that testimony had been assailed, inasmuch as the consistency of the prior statement with the witness‘s testimony at trial made it ‘appear that the statement in the form now uttered was independent of the [alleged] discrediting influence.‘”
Id. at 232-233 (Emphasis added; citations omitted; bracketed words in the original.)
The court in Quinto, supra, went on to note that
Other federal courts have noted that Quinto, supra, and its progeny read this requirement into the Rule, while the Rule itself includes no such limitation upon admissibility for the purpose of corroborating an allegedly impeached witness’ testimony. United States v. Parodi, 703 F.2d 768, 784 (4th Cir.1983); and United States v. Harris, 761 F.2d 394 (7th Cir.1985). See also, United States v. Pierre, 781 F.2d 329 (2nd Cir.1986); United States v. Obayagbona, 627 F.Supp. 329 (1985). These cases hold that Quinto, supra, was concerned only with the application of
“Since the only mention of prior consistent statements in the Federal Rules of Evidence is in Rule 801(d)(1)(B) and this limits admissibility to cases where the statement ‘is offered to rebut an express or implied charge against him of recent fabrication of improper influence,’ lawyers and judges can be forgiven for being misled into concluding, as was done by dictum in United States v. Quinto, ... that the limitation applies to the use of prior consistеnt statements for rehabilitation as well as for direct evidence. However, analysis makes it clear that Rule 801(d)(1)(B) simply does not deal with the extent to which prior consistent statements may be used for rehabilitation.” (Emphasis added.)
United States v. Rubin, 609 F.2d 51, 68-69 (2d Cir.1979, Friendly, J., concurring), aff‘d., 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981), quoted in Parodi, supra at 785, n. 13.
This split in federal authority is confusing, and the cases (Rubin, Parodi, and Harris, supra, among others) that support the rule that motive to fabricate goes only to the weight and not to the admissibility of a prior consistent statement are of only limited assistance. Judge Friendly‘s underscored comment is difficult to accept in view of the plain language of the Rule, which certainly appears to contemplate rehabilitation. We are also confronted with the additional reference to prior consistent statements in
When the new Rules of Criminal Evidence were promulgated, a decision was made to adopt the wording of
In the instant case, Officer Osterberg testified about three prior statements made by Jackson that were all consistent with the testimony she gave at trial. There is no dispute that all three statements were made after Jackson was promised money in return for information. All the statements were made after Jackson had a motive to testify falsely. Therefore, none of them were admissible to rebut a claim of recent fabrication.
We therefore reverse the judgment of the Court of Appeals because of the error in the admission, over proper objection, of evidence of Jackson‘s prior consistent statements. Such error must of course be assayed for harm to the appellant, a task the Court of Appeals necessarily never reached in their disposition of these grounds of error.
The case is therefore remanded to the Court of Appeals for proper disposition not inconsistent with this opinion.
ONION, P.J., and McCORMICK, J., concur in the result.
TEAGUE, Judge, concurring.
This Court‘s court made evidentiary rule of law that is applicable and thаt controls the issue before this Court for it to resolve is set out in Rains v. State, 146 S.W.2d 176 (Tex.Cr.App.1940). Because it is set out in the majority opinion, it need not be repeated here. This evidentiary court made rule of law was in effect at the time when Louis Campbell, hereinafter referred to as
Neither the Federal Government, see
I write only because the majority opinion contains dicta that might be construed as approving ex post facto laws. The majority opinion states the following therein: “It is appropriate ... to examine the continued viability of Rains, supra, in light of the recent promulgation of the new rules of evidence in Texas.” (My emphasis.) It is not. These rules did not become effective until September 1, 1986, by fiat of this Court on December 18, 1985. These rules, although rules, are “laws” of this State, see Pannell v. State, 666 S.W.2d 96, 102 (Tex.Cr.App.1984) (Teague, J., dissenting opinion), and cannot be applied to any cases pending on appeal because of the ex post facto clauses, either State or Federal. Because it is not necessary to invoke, apply, or discuss any of the new rules of criminal evidence in this cause, the majоrity opinion prematurely and unnecessarily interprets one of the new rules of criminal evidence.
It has long been axiomatic in these United States, and in this State, what Justice Bushrod Washington wrote almost 190 years ago in United States v. Hall, 2 Wash.C.C. 366, 373 (Fed.Cas. No. 15,285, 26 Fed.Cas., Cir.Ct.D.Pa.1809), and what Justice Samuel Chase stated in Calder v. Bull,
I further point out, but do so in reference to the rules of civil procedurе, that the above principles of law have been approved and adopted by the Supreme Court of Texas, see Federal Underwriters Exchange v. Lynch, 168 S.W.2d 653 (1943); Airline Motor Coaches, Inc., v. Fields et al., 166 S.W.2d 917 (1943), which held that where a case was tried before the effective date of the then Rules of Civil Procedure, questions raised on writ of error were required to be considered in light of principles of law then applicable. Also see Goff v. Tuchscherer, 614 S.W.2d 934 (Corpus Christi Civ.App.-1981), reversed, Goff v. Tuchscherer, 627 S.W.2d 397 (Tex.1982); Livingston v. Gage, 581 S.W.2d 187 (El Paso Civ.App.1979). As to the rules of civil evidence, see Tramel v. Estate of Billings, 699 S.W.2d 259 (Tex.App.—San Antonio 1985).
This Court has long adhered to the above principles of law. In Plachy v. State, 91 Tex.Cr.R. 405, 239 S.W. 979 (Tex.Cr.App.1922), this Court stated the following: “It seems well settled in this state that a law which alters the rules of evidence applicable in a given case, so that under the law less or different testimony is required to convict the offender than was required at the time of the commission of the offense, must be held an ex post facto law, and not applicable upon the trial of one for an offense committed prior to the tаking effect of such new enactment.” (981). Also see Hill v. State, 171 S.W.2d 880 (Tex.Cr.App.1943); The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977 edition).
For all of the above and foregoing reasons, I concur.
Robert DELGADO, Appellant, v. The STATE of Texas, Appellee.
No. 961-84.
Court of Criminal Appeals of Texas, En Banc.
Sept. 24, 1986.
Rehearing Denied Oct. 29, 1986.