Bentley v. State

AREND, Justice

(dissenting).

In Patterson v. Cushman1, a civil case, we adopted the rule that, where a witness admits that he has made an earlier written statement inconsistent with his testimony at the trial, it is not error for the trial court to refuse to admit the prior written statement in evidence. As a reason for adopting that rule we stated that the written statement would not have contradicted (impeached) the witness any more than his admission had already done. I cannot convince myself that we should set up a different rule for criminal cases, and, therefore, I register this dissent.2

*980The crucial issue m the present case is whether the appellant Bentley stabbed Abraham Omar. At the trial Doreen Fambrough testified that she actually saw Bentley with a knife in his hand stab Omar in the abdomen. On cross-examination she first denied but finally admitted that she had previously told the defendant that she did not see him stab Omar. It seems to me that Fambrough’s admission regarding the prior inconsistent statement adequately placed before the jury the issue as to her credibility. To admit all of the conversation between Fambrough and Bentley, as recorded on the tape, would only be time-consuming and would tend to distract the attention of the jury from the crucial issue. Not only is the tape repetitive of what Fambrough had admitted on cross-examination, but it tends to overemphasize the importance of the inconsistent statements.

The transcription of the taped conversation filled twenty-four typewritten pages. The conversation on the tape regarding the signing of a statement by Fambrough for the police officers that she had seen Bentley stab Omar followed by her admission to Bentley that she did not actually see him “knife” Omar took up less than five pages. The remainder of the transcription from the tape deals with matters unrelated to the alleged stabbing of Omar, namely: Fam-brough’s account of a conversation she had had with a person known as “the preacher”; her “frame-up” of criminal charges against the appellant that he had assaulted and battered her; her description of a fight she had had with a woman at one night club and with' a man at another; the lurid details of an illicit love affair between Fam-brough and the appellant at the very time that the tape recording was being made; and Fambrough’s account of her affair with, and mistreatment by, a man in Vancouver, Washington.

It is true that some of the foregoing incidents were evidence of such bad moral character as to render Fambrough unworthy of belief. However, under the former statute, and now by rule of court, as set out in note 1 of the majority opinion, bad moral character may only be shown by general reputation, not by specific acts of misconduct on the part of the witness sought to be impeached.

It cannot be denied that admission of the tape in evidence would have discredited Fambrough’s testimony much' more than her dry admission of having made a prior inconsistent statement. However, in that event, the tape’s effectiveness would have depended largely upon its vivid portrayal to the jury of specific acts of misconduct of the witness in her personal life.

I believe that the reasons given by the trial court for excluding the prior inconsistent statement (in this case the tape recording) as mentioned in the opinion of the majority, are sound and practical and more compelling than those advanced by my colleagues and the authorities they cite for admitting such a statement. For the reasons stated in this dissent, I conclude that the judgment of the trial court should be affirmed.

. Opinion No. 233, 394 P.2d 657 (Alaska 1964).

. For authorities expressing the view that, if a witness admits having made the impeaching statement, there is no reason for further proof on the subject and none should be received, see People v. Pianezzi, 42 Cal.App.2d 270, 108 P.2d 685, 690 (1940), cert. denied, 314 U.S. 611, 62 S.Ct. 81, 86 L.Ed. 492 (1941); Tycer v. Hartsell, 184 Or. 310, 198 P.2d 263, 266 (1948); State v. Pitts, 62 Wash.2d 294, 382 P.2d 508, 511 (1963); Blackburn v. Groce, 46 Wash.2d 529, 283 P. 2d 115, 117 (1955); 4 Jones, Evidence § 937, at 1767 (5th ed. 1958); McCormick, Evidence § 37, at 68 (1954).