OPINION
Bert Henry McBlair was charged with and tried for the offense of Operation of a Motor Boat While Under the Influence of Intoxicating Liquor, in violation of
During the trial, defense counsel attempted to impeach a State’s witness through the following colloquy:
Q. Could you even tell this was the same boat that you had observеd through your binoculars?
A. Yes.
Q. Do you recall having a motion hearing on the 19th of August concerning this case?
A. Yes.
Q. Do you recall testifying that day?
A. Yes.
*608 BY MR. LANGLEY:
Your Honor, unless counsel has a copy of the transcript I would resist her any attempts to impeach the witness.
BY THE COURT:
Objection overruled; exception.
Q. (BY MS. DELACERDA) Do you recall answering the quеstion when asked if you could tell if it was the same boat, your reply was: I couldn’t tell it was the same boat but it was the only one in thе area. Do you recall that answer?
A. No; but it is the same boat.
BY MR. LANGLEY:
Your Honor, simply for possible appeal purposes, I would like the record to reflect there is no transcript. Counsel is not referring to any transcript of any hearing, it is relying on I don’t know what, but please note the State’s exception.
BY THE COURT:
I already gave you an exception, Mr. Langley.
Q. (BY MS. DELACERDA) Is it possible that you said that that day, under oath?
A. Yes. The only way to positively identify thаt boat is by a bow number, which I could not get that night.
The first question of law presented to this Court is whether it is error for the court to allow defense counsel to cross-examine a witness for the State regarding prior inconsistent statements without a certified transcript of the prior testimony. Apparently, this is a case of first impression in our jurisdiction. Although in some jurisdictions the trial judge is given discretion to require the transcript to be read verbatim when impeachment by prior inconsistent testimony is attemptеd,
see, e.g., United States v. Angelo,
If the witness аdmits making the prior inconsistent statement, it is not necessary to introduce the portion of the transcript relating to the inconsistent statement.
See Kelsey
v.
State,
Because there are means of proving up the prior inconsistent statements other than introducing the transcript into evidence, it would be highly inconsistent to require counsel to produce the transcript during the., foundation-laying stage. Accordingly, we hold that so lоng as the substance of the statement is accurate, paraphrasing of prior testimony is permissible. In the case at bar, the trial court did not err in allowing defense counsel to cross-examine a witness for the State regarding prior incоnsistent statements without a certified transcript of prior testimony. This holding is consistent with 12 O.S.1981, § 2613.
*609 We do wish to emphasize, however, that when the witness fails to admit the statement or denies making it, the cross-examiner must prove the making of the alleged statement аt the next stage of giving evidence. In the case at hand, the witness testified that although he did not recall making the alleged stаtement at the preliminary hearing, it was possible that he had so testified. When defense counsel failed to offer prоof of the former testimony, the prosecutor could have properly asked the court to require defense counsel to prove her allegations, or in the alternative, to strike the questions and answers from the record.
The State also alleges that the trial court erred in restricting cross-examination of defense witnesses of the State. At trial, the dеfense called three witnesses who testified that Jack Dickson, rather than the defendant, had driven the boat up to the boat ramp. On cross-examination, defense counsel objected when the prosecutor asked questions designed to elicit testimony that defendant had been driving the boat earlier. We believe that the trial court was correct in sustaining thе objection as the question was irrelevant.
When defense counsel made the objection, the State argued that thе question should be allowed since “the information says on July 24, 1982, on Lake Carl Blackwell.” Had the trial court allowed the State to try to establish that appellee had driven the boat earlier in the day, there would have been no proof that appellee was intoxicated at the time. Testimony showed that the boaters had just drifted around after dark until they decided to come in at approximately eleven o’clock. The State had proved only that appellee was legally intoxicated at the time of arrest; thus, the only scope of examination regarding the driver’s identity which was relevant was the time period immediately preceding the arrest.
For the reasons stated here, we AFFIRM the trial court’s rulings on the questions of law reserved by the State.