513 So. 2d 1185 | La. | 1987
Lead Opinion
This case involves a conviction of aggravated crime against nature allegedly committed against an eight-year old girl. We granted certiorari to determine whether a new trial is required because the trial judge refused to allow defense counsel to impeach the mother of the alleged victim with a prior inconsistent statement. We conclude that the exclusion of impeaching evidence which tended to show a basis for bias on the part of the child’s primary authority figure warrants the granting of a new trial.
Defendant was charged with committing the crime against Kathryn Rutley between November 15 and 17, 1982. Sonya Rutley, the mother of the alleged victim, had lived with defendant for at least one month in 1973 or 1974. In September, 1974, Sonya Rutley gave birth to Kathryn.
Later the same evening, according to Rutley, Kathryn told her that defendant had also hurt her in a different way and described an incident several months earlier when defendant had forced her to have oral sex with him. Sonya Rutley then reported the incident, and she and her daughter gave statements to the police.
The trial was a pure credibility contest between defendant and the child, since there was no physical or medical evidence to support the occurrence of the alleged incident. Kathryn Rutley testified that the incident occurred in mid-November, 1982.
The prosecutor rested after presenting Kathryn and a witness who established defendant’s age. The defense then called Sonya Rutley to the stand. Rutley testified that Kathryn had visited the trailer around November 15 to 17 to listen to music played by defendant’s small band. When Rutley arrived at the trailer to check on Kathryn, Pinkey Savoie, another member of the band, was also there. She and Kathryn left when Kathryn told her she did not want to spend the night. According to Rutley, the argument with defendant at the restaurant several months later began when defendant asked her to bring Kathryn to visit Tammy and she informed defendant that Kathryn did not want to visit there anymore.
Rutley admitted that she had been romantically involved with defendant in the past. She further admitted that she had gone trawling with him in November, 1982 (the month in which the crime allegedly occurred), but denied having sex with him on that trawling trip. Counsel then asked if she had ever told anyone she had sex with defendant on the November trawling trip, and she replied, “Not that I can recall”. When counsel attempted to question her about a signed statement, the prosecutor objected that defense counsel was attempting to impeach his own witness without establishing she was a hostile witness. The judge sustained the objection and refused to allow counsel to question Rutley about the statement.
The defense then called the police officer who had interviewed the child after her mother reported the incident. In the statement the child said that the incident had occurred on a Thursday night.
Defendant's wife testified that Kathryn Rutley visited Tammy at their trailer from time to time. She recalled that Kathryn had come to the trailer on November 18, 1982 (a Thursday), because defendant, Sa-voie and another member of their band had played music that night for the celebration of her wedding anniversary. Kathryn had planned to spend the night, but cried to go home when her mother, who had been there all evening, started to leave. Defendant’s wife specifically denied that she had left the trailer that evening, and she further testified that she didn’t “see how” defendant and Kathryn could have been alone because “[t]here were so many people there”. She added that Sonya Rutley and the child were the first to leave that evening.
Defendant denied any touching or sexual advances toward the child at any time. As to the dates set out in the indictment (No
On appeal following the conviction, one of the assignments of error was the trial court’s refusal to permit impeachment of Sonya Rutley with a prior inconsistent statement. A divided intermediate court affirmed the conviction. 499 So.2d 1220. The majority conceded that Sonya Rutley was indeed a hostile witness and that the trial judge had erred in denying counsel’s entitlement to impeach her by means of a prior contradictory statement under La. R.S. 15:487. However, the majority concluded that evidence impeaching Rutley on whether she and defendant had sexual relations around the time of the alleged offense concerned a collateral matter and was not competent under La.R.S. 15:494, which prohibits impeaching any witness as to collateral facts or irrelevant matters. We granted defendant’s application to review these rulings. 503 So.2d 486.
A party is generally not permitted to impeach his own witness. However, if the witness shows hostility toward the calling party, impeachment is permitted, but only by means of a prior contradictory statement.
The rule against impeachment on collateral facts, enacted in Louisiana in La. R.S. 15:494, applies to all witnesses and not just those witnesses called by the impeaching party. Because any human being may be mistaken as to a particular fact, a cross-examiner should not be permitted to test a witness on facts extraneous to the litigation and thereby cause the waste of valuable court time and the risk of confusing of the jury. Impeachment by extrinsic evidence is therefore generally limited to facts which would be admissible for any purpose independent of the showing of self-contradiction. Accordingly, impeachment is permitted on facts which are relevant to the substantive issues in the case and facts which discredit the witness as to bias, interest, skill, knowledge and the like. See generally E. Cleary, McCormick on Evidence § 36 (3rd ed. 1984); 3A Wigmore on Evidence § 1020-22 (Chadbourne rev. 1970).
Here, the essence of the defense was that Sonya Rutley had a continuing romantic relationship with defendant and had reported the crime in retaliation either for being rebuffed in this relationship or for the injury inflicted by defendant following their violent argument. During the trial, Rutley admitted she and defendant had a previous sexual relationship, and there was even a suggestion that Rutley’s daughter may have been born of that relationship. Rutley further admitted going with defendant on his trawling boat around the time of the alleged crime, but denied the one fact which would have proved the continuation of the sexual relationship and would have suggested an explanation for the heated argument on the day she reported the alleged incident to the police.
Defense counsel’s attempt under these circumstances to show the witness’ bias by evidence of the continuation and the ultimate termination of a sexual relationship with defendant can hardly be termed impeachment on collateral facts. This evidence involved more than a trivial detail of time, place or circumstance unimportant to the resolution of the ultimate credibility issue. Moreover, allowing the evidence would not have conflicted with La.R.S. 15:494’s purpose of preventing the waste of time and the risk of jury confusion. Defense counsel should have been permitted to impeach Rutley on the fact which tended to show her bias and to undermine the credibility of her denial of coaching the witness. Defendant’s loss of this opportunity for impeachment of an important witness in the ultimate credibility determination requires reversal of the conviction.
Accordingly, the conviction and sentence are reversed, and the case is remanded to the district court for further proceedings.
. According to defendant, Sonya Rutley told him Kathryn was his daughter.
. Actually, the witness related the incident in time with another event which, according to other witnesses, occurred around November 15 to 17, 1982.
. The general rule prohibiting the impeachment of a party’s own witness has been limited by statute under present Louisiana law, but has been abandoned in several jurisdictions and in the federal system. E. Cleary, McCormick on Evidence § 38 (3rd ed. 1984); Fed.R.Evid. 607. See proposed Louisiana Code of Evidence Arti-ele 607. The problem is that a party rarely has any choice in selecting witnesses to a particular fact, and absolute denial of the right of impeachment to the calling party leaves the witness free to lie without fear of attack by either the calling party or the adverse party.
. Of course, we do not suggest that the child, as a matter of fact, imagined the incident because of undue influence exerted by her mother. The defense, however, does argue that the biased mother caused the child to imagine or to exaggerate the incident, and that determination is one for the jury after both sides had been allowed to present all admissible evidence.
Concurrence Opinion
(concurring).
A party cannot call a witness to impeach him merely because that witness is potentially an adverse witness. However, in this case, Sonya Rutley was more than an adverse witness. She was the mother of the key witness against defendant. It was obvious that Sonya Rutley had a strong influence over that key witness, her eight-year-old daughter. Thus, it was relevant for the defense to show that Sonya Rutley’s bias against him led her to influence the testimony of her daughter. Therefore, I agree with the majority that the defense had the right to call Sonya Rutley, show that she was a hostile witness and then use a prior contradictory statement to impeach her. Accordingly, I respectfully concur.