I respectfully dissent from that portion of the majority opinion regarding the issue of the impeachment of two witnesses. I do not disagree with the abstract principles of law recited in the prevailing opinion. However, I cannot agree with the affirming judges’ application of those principles to the facts of this case.
The State’s witness, Kimberly Smith, testified on direct examination that she did not see anyone with a gun on the night of the shooting. The prosecutor asked if she saw anything in appellant’s hand that night. She responded, “I can’t say it was a gun but — I don’t know what it was in his hand.” When the prosecutor asked her if she had given a statement to the police, appellant’s counsel sought to be heard on his motion in limine that the State not be permitted to impeach its own witness with a prior statement because the effect would be to present inadmissible hearsay as substantive evidence. A hearing outside the jury’s presence was conducted at that time, and the witness testified that she did not have firsthand knowledge as to the substance of the statements she made and that much of her prior statement was based on hearsay. She further testified at the hearing that she saw the print of a gun in appellant’s back pocket, but that she could not say with certainty that it was a gun. Her prior statement was that she saw appellant “playing with his gun” and “saw him with it that night.” The court ruled that the State could ask the witness if her trial testimony was inconsistent with the prior statement and if she said “yes,” no further testimony would be permitted.
When the trial resumed, Smith stated that she did not see anything in appellant’s hand that night, but did see what looked like the print of a gun in his pocket. When the prosecutor asked if her testimony was consistent with her prior statement given to the police, appellant objected, the court modified its earlier ruling, and the question was never answered. The court ruled that the probative value of the impeachment outweighed any possible prejudicial effect. The prosecutor was then allowed to ask the witness whether she said in her prior statement that appellant had a gun. The witness responded, “By hearsay, yes, I did.”
Appellant first contends that the State impermissibly exposed to the jury hearsay testimony and that the probative value of the testimony was outweighed by the prejudicial effect of the jury attributing substantive value to the prior inconsistent statement. Appellant cites Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), in which the supreme court held that the State knew that the witness’s trial testimony would be inconsistent with a prior statement and that the only reason the State could have for impeaching its own witness would be to allow the jury to accord substantive value to the otherwise inadmissible testimony. Here, however, the prosecutor stated that the State had not spoken with the witness prior to trial because she was charged with murder in an unrelated case. Thus, unlike in Roberts, I cannot say that the State’s impeachment of its own witness was done in bad faith. See Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983).
Appellant argues next that the State could ask the witness, without referencing the specific prior statement, only whether her trial testimony was inconsistent with a prior statement. In Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987), the court rejected the argument that questioning by referencing the prior inconsistent statement was impermissible. There, the witness was questioned by reference to a specific prior inconsistent statement, and the court held that the questioning was not unduly prejudicial. In Gross v. State, supra, this court stated that whether a witness could be questioned with reference to the specific statement is controlled by Ark. R. Evid. 607, 613, and 403. While the law is clear that it is impermissible to quote from the prior statement so as to essentially read it into evidence, the permissibility of a reference to the specific statement is governed by Rule 403. Roberts v. State, supra; see Hinzman v. State, 53 Ark. App. 256, 922 S.W.2d 725 (1996). In the present case, the trial court held that the probative value of the impeachment of the witness’s testimony outweighed its prejudicial effect. Prior inconsistent statements are relevant for impeachment purposes where they contradict testimony. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987). If the cross-examiner is restricted to referring to the prior statement only in the most general terms, the witness is not given a fair opportunity to explain the prior statement, any impeachment that may occur is negligible, and the jury is likely confused. I find no error in the impeachment of witness Kimberly Smith.
Shawn Jefferson, the second witness in question, testified at trial that the only person near the victim’s car at the time of the shooting was Jerome Woodard. Jefferson’s testimony cited in the prevailing opinion demonstrates that Jefferson failed to unequivocally admit the statement. One of the purposes for referring to the content of the prior statement is to call the witness’s attention to the exact statement so that the witness is given a complete opportunity to explain or deny it, in accordance with Rule 613(b). When the witness does not unequivocally admit the making of the statement, but says “I can’t remember” and “I believe so,” then the minimal foundation required by this rule has been laid. Here, the prosecutor paraphrased Jefferson’s prior statement that appellant shot the victim some four to five times and also quoted a brief excerpt from this statement that “[appellant] went to shooting at the dude.” In the end, Jefferson admitted making a prior statement that he had seen appellant shoot the victim four or five times; however, the prosecution did not pursue the questioning and produced no extrinsic evidence. The State should not be limited in its impeachment evidence when the witness does not unequivocally admit making the prior inconsistent statement. See Hinzman v. State, supra. I find no error.
Jennings, C.J., joins in this opinion.