Marcus Threadgill was charged with capital murder in the shooting death of Larry Roberson. After a jury trial, he was convicted of first-degree murder and sentenced to thirty-three years in prison. For reversal, Threadgill makes two arguments: (1) that the trial court erred in permitting the State to impeach the testimony of the witness, Tequila Hall, and (2) that the trial court erred in allowing the eyewitness testimony of Christopher Parker. We find no error and affirm.
On April 30, 1997, Larry Roberson was shot in the head as he sat in the driver’s side of his own car. His body was dumped on the side of the road. There was evidence at trial that the shot was fired from the back seat of the car.
Some eighteen months later appellant, Marcus Threadgill, and his cousin, Christopher Parker, were arrested in connection with the murder. Parker, who was ultimately charged with hindering apprehension, gave a statement to the police. He said that he was riding on the passenger side of Roberson’s vehicle when Threadgill shot Roberson from the back seat. At trial, appellant stipulated that he was in the car at the time of the shooting.
During the investigation, the police interviewed Tequila Hall. Hall told them that appellant and Parker came to her apartment, which was located near where Roberson’s car was found, on the night of the shooting and asked her to take them home. On the way they stopped at Parker’s sister’s apartment, where the two men changed clothes. Hall also told the police that appellant said to her, with other people present, that he had “shot the dude.” Threadgill does not argue on appeal that the evidence is insufficient to sustain his conviction.
Appellant’s first argument is that the trial court erred in permitting the State to introduce into evidence the prior statement given by Tequila Hall. The argument is based on a line of cases which have held that once a witness admits making a prior inconsistent statement and admits that it was false, then the statement itself is not admissible. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Hinzman v State, 53 Ark. App. 256, 922 S.W.2d 725 (1996); Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983). The theory is that “an admitted liar need not be proved one.” Appellant’s argument must fail for two reasons.
The most critical portion of Hall’s prior statement to the police was her statement that appellant had told her and others that he had “shot that dude.” On cross-examination Hall testified that she had not heard appellant talking about the night of the shooting, hadn’t overheard any conversation, and didn’t remember talking to a police officer about it. She said, “I don’t remember saying it, or if I did say it, it is not true.”
In Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001), the supreme court, faced with quite similar circumstances, held that it was not error to permit the State to impeach the witness by the introduction of the prior inconsistent statement. In Kennedy the witness admitted she had made a prior statement to the police, but professed a lack of memory about the particulars. The court said that, “where ... the witness is asked about the prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible”. Kennedy, 344 Ark. at 445 (citing 1 John W Strong, McCormick on Evidence § 34 at 126 (5th ed. 1999)).
After examining the witness’s statement as a whole, the court determined that “the only thing that she fully admitted was that she had given a statement or interview to the police.” The court said that her answers were “hardly full and unequivocal admissions of having made the prior inconsistent statements.” Kennedy, 344 Ark. at 448. See also, Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Chism v. State, 273 Ark. 1, 616 S.W.2d 728 (1981); Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). The court’s language fairly describes the answers given by the witness in the case at bar.
Furthermore, the issue now raised on appeal was not preserved at trial. When Ms. Hall’s prior inconsistent statement was offered the following cohoquy took place:
By Defense Counsel: We have an objection under Rule 613(b), where it states it is not permissible to impeach a witness by a statement.
By THE Court: About past recollection recorded or present recollection refreshed or impeachment.
By Prosecuting Attorney: For impeachment.
By Defense Counsel: He can take a look at the Rule. I’m only just looking at the black and white rules in the rule book.
By Prosecuting Attorney: It’s a contradictory statement, also, by the witness.
By Prosecuting Attorney: It’s a prior inconsistent statement given by the witness. It is clearly admissible.
By THE Court: Any response?
By Defense Counsel: Just note our objection, Judge.
By the Court: On what basis?
By Defense Counsel: The basis of the objection is Rule 613(b).
Rule 613 of the Arkansas Rules of Evidence states:
(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Here, Rule 613(b) was not violated — the witness was afforded an opportunity to explain or deny the prior inconsistent statement. The rule relied upon by appellant for reversal, that an admitted liar need not be proven one, is not contained in Rule 613 of the Rules of Evidence but rather is a matter of case law, as appellant recognizes in relying on Ford v. State and Hinzman v. State. Although the Rules of Evidence have been codified in this state, there still remain rules which are purely a matter of case law.
Error may not be predicated upon a ruling by the trial court which admits evidence unless a timely objection appears in the record, stating the specific ground for the objection. See Ark. R. Evid. 103(a)(1). This is not a technical hurdle to be overcome but is rather a practical rule designed to give the trial judge a fair opportunity to decide whether the evidence is or is not admissible. A party cannot change the grounds for his objection on appeal. Maxwell v. State, 73 Ark. App. 45, 41 S.W.2d 402 (2001). This is what appellant attempts to do in the case at bar.
Appellant’s second argument is that the trial court erred in not prohibiting Christopher Walker, an eyewitness to the crime, from testifying because of what appellant characterizes as a discovery violation. Two statements given by Parker to the police are at issue. On June 2, 1997, Parker gave a taped statement to Miller County Sheriffs deputies. The tape was subsequently lost and apparently never transcribed. On June 4, 1997, Parker gave a statement to Ocie Ratliff of the Arkansas State Police. This statement, in narrative form, was provided to the appellant and the State represented to the court that no other form of the statement was in existence.
In asking that the court bar Parker from testifying, defense counsel said:
Your Honor, I guess I can sympathize to the dilemma Mr. Jones faces. However, according to the interview that Troy Gentry and Hays McWhirter generated, it says that this statement was taped by Officer Gentry. For one, we know there was a tape in existence at one point. Again, I’m not alleging any wrong-doing personally on the part of the prosecutor’s office, but for the sheriffs office to just lose key pieces of co-defendant’s testimony, with no explanation other than “We don’t know,” is not permissible.
The court then ruled:
The defense will be allowed broad latitude to examine, and I’ll presume them hostile, Officer Gentry and Trooper RatlifF, Detective RadifF. The court finds no substantial evidence of a discovery violation, though there may well be a violation of the spirit of the discovery rule. You have every right to inquire of it, and the court believes that any impeachment that could be had from one of the series of verbal statements, can be had by a vigorous cross examination of Ratliff and Gentry and McWhirter as to the absent tape.
Rule 17.1 of the Rules of Criminal Procedure provides that the prosecuting attorney shall disclose certain information to defense counsel which is within his “possession, control, or knowledge...” This obligation extends to information within the possession of others who have participated in the investigation on behalf of the State. See Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981); Commentary to Article V
For reversal on this point appellant relies on Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), and Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). Neither case requires reversal.
Williamson is a leading case in this state on discovery in general and stands for two propositions: (1) when a party is entitled to information through discovery, he is entitled to have it within sufficient time to permit his counsel to make beneficial use of the information, and (2) when a defendant is entitled to a witness statement, he is also entitled to the tape recording of the statement. Williamson did not deal with the State’s loss of evidence nor did it hold that the trial court should prohibit the five testimony of a witness.
In Hamm the supreme court held that when the State had erased the tape of the defendant’s confession, the State was prohibited from introducing into evidence transcript of the confession. But the court also said:
This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the Rules of Criminal Procedure.
See also Mays v. State, 57 Ark. App. 282, 944 S.W.2d 562 (1997).
The problem in the case at bar is not so much one of a discovery violation as it is one of the loss by the State of evidence potentially useful to the defendant. Here the defendant quite reasonably sought Parker’s earlier statements for the purpose of cross-examination. The problem is really one of fundamental fairness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.1
In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. See also, State v. Burk, 653 N.E.2d 242 (Ohio 1995); Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991); Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988). In the case at bar, there was neither an allegation nor proof of bad faith.
We conclude that the trial court’s ruling in the case at bar was a reasonable one. Compare State v. Montijo, 727 A.2d 533 (N.J. Super. Ct. Law Div. 1998). For the reasons stated the decision of the circuit court is affirmed.
Affirmed.
Stroud, C.J., Robbins, Crabtree, and Baker, JJ., agree. ROAF, Bird, and VAUGHT, JJ., concur in part, and dissent in part. Griffen, J., dissents.The due process issue was neither specifically raised in the trial court, nor made an issue on appeal.