Appellant, Michael Drew Kennedy, was found guilty by a jury of the crime of first-degree battery. He was sentenced to serve ten years in the Arkansas Department of Correction. In this appeal he does not challenge the sufficiency of the evidence, but argues only that the trial court erred when it allowed a statement given by an eyewitness, Kimberly Kennedy, to be read into evidence by Officer Ross Dean, who took the statement.
At about 2:30 a.m. on July 27, 1997, some arm wrestling took place inside the 659 Club in Choctaw, Arkansas. Later a fight occurred outside the club during which Lanny Bates was seriously cut by a knife allegedly used by appellant. There were a number of eyewitnesses to the incident, several of whom were related to each other and to appellant. Appellant asserted the justification of self defense, and much of the testimony centered around the fact that Bates somehow started the fight.
At trial, Ms. Kennedy, who is married to appellant’s first cousin, testified that she made a statement to the police shortly after the incident, and that she had reviewed it. However, she said that she could remember few details of what was in the statement. In the statement, Ms. Kennedy said that she saw a knife in appellant’s hand, but on direct examination she said that she couldn’t remember whether she saw a knife during the fight and didn’t remember telling the officer that she saw appellant with a knife in his hand. The State then called Officer Dean, who testified concerning the statement that he took from Ms. Kennedy. Appellant objected, arguing that Officer Dean’s testimony was hearsay and that the statement was not a prior inconsistent statement. The trial court found that the statement to Officer Dean was an inconsistent statement and allowed the officer to testify about what Ms. Kennedy told him; it did not allow the statement itself to be admitted into evidence.
On appeal, appellant contends that the trial court erred by allowing the officer to read Ms. Kennedy’s statement to the jury as a prior inconsistent statement. He argues that the statement was not inconsistent, but was a “no recall.” Appellant also contends that the statement was admitted as substantive evidence against him. The State contends that Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981), is directly on point and controlling in this appeal. We agree.
In Chisum, the witness, appellant’s sister, professed to have forgotten what she told the sheriff concerning the shooting death of a Mr. Rackley; in her testimony, she testified to nothing unfavorable to appellant, and she could not remember any of her statements to the sheriff that implicated appellant. The trial court allowed the sheriff and his secretary to narrate the statement made by the witness, and our supreme court ruled that this evidence was properly admissible despite the witness’s professed lack of memory, relying upon the following reasoning from Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889):
The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly admitted.
273 Ark. at 8, 616 S.W.2d at 731.
In Chisum, supra, the defense objected to the preferred statements on hearsay grounds, and the trial court admitted the statements, finding that they were admissible for impeachment as inconsistent out-of-court statements. Likewise, in the instant case, appellant objected to the statements on hearsay grounds, and the trial court found that Ms. Kennedy’s statement was an inconsistent statement. Therefore, based on Chisum, we cannot say that the trial court erred in allowing Officer Dean to read Ms. Kennedy’s statement to the jury.1
In regard to appellant’s argument that the statement was admitted as substantive evidence against her, appellant never asked for a limiting instruction stating that the prior statement was for impeachment purposes only. When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the objecting party asks the court to limit the evidence to its admissible purpose. Chisum, supra. Thus, appellant’s argument that Ms. Kennedy’s statement was hearsay but was used as substantive evidence by the prosecutor is to no avail because he failed to seek a limiting instruction.
Affirmed.
Crabtree, Jennings, and Pittman, JJ., agree. Roaf and Hart, JJ., dissent.Although the dissent states that Chisum has been limited, we simply note that it has not been overruled.