{ "id": 210128, "name": "Michael Drew KENNEDY v. STATE of Arkansas", "name_abbreviation": "Kennedy v. State", "decision_date": "2001-04-19", "docket_number": "CR 00-1250", "first_page": "433", "last_page": "452", "citations": [ { "type": "official", "cite": "344 Ark. 433" }, { "type": "parallel", "cite": "42 S.W.3d 407" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "339 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130662 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0266-01" ] }, { "cite": "340 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365266 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0116-01" ] }, { "cite": "342 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342360 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0237-01" ] }, { "cite": "309 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906097 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0054-01" ] }, { "cite": "241 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1723978 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/241/0120-01" ] }, { "cite": "241 Ark. 772", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724125 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/241/0772-01" ] }, { "cite": "341 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257760 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0144-01" ] }, { "cite": "342 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342384 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0172-01" ] }, { "cite": "278 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748115 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/ark/278/0550-01" ] }, { "cite": "570 F.2d 731", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 918091 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/570/0731-01" ] }, { "cite": "8 Ark. App. 241", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141062 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "250" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/ark-app/8/0241-01" ] }, { "cite": "296 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892697 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "18" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0008-01" ] }, { "cite": "337 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240967 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0413-01" ] }, { "cite": "300 S.W. 426", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "opinion_index": 0 }, { "cite": "175 Ark. 786", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403632 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/ark/175/0786-01" ] }, { "cite": "12 S.W. 574", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 3, "year": 1889, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "52 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913344 ], "weight": 3, "year": 1889, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ark/52/0303-01" ] }, { "cite": "310 Ark. 721", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898827 ], "weight": 4, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0721-01" ] }, { "cite": "625 F.2d 782", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1283221 ], "year": 1980, "pin_cites": [ { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/f2d/625/0782-01" ] }, { "cite": "774 F.2d 868", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 35695 ], "year": 1985, "pin_cites": [ { "page": "873", "parenthetical": "quoting United States v. Dennis, 625 F.2d 782, 795 (8th Cir. 1980)" } ], "opinion_index": 0, "case_paths": [ "/f2d/774/0868-01" ] }, { "cite": "287 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876650 ], "weight": 4, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0190-01" ] }, { "cite": "310 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898811 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0260-01" ] }, { "cite": "334 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655433 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0390-01" ] }, { "cite": "329 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236159 ], "weight": 9, "year": 1997, "pin_cites": [ { "page": "564" }, { "page": "37" }, { "page": "564" }, { "page": "37" }, { "page": "564" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0554-01" ] }, { "cite": "342 Ark. 213", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342449 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0213-01" ] }, { "cite": "279 Ark. 68", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746951 ], "weight": 13, "year": 1983, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ark/279/0068-01" ] }, { "cite": "273 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717238 ], "weight": 18, "year": 1981, "pin_cites": [ { "page": "6" }, { "page": "730" }, { "page": "8" }, { "page": "731" }, { "page": "8" }, { "page": "732", "parenthetical": "emphasis added" }, { "page": "9" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/ark/273/0001-01" ] }, { "cite": "71 Ark. App. 171", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139326 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/71/0171-01" ] }, { "cite": "340 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365318 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/340/0053-01" ] } ], "analysis": { "cardinality": 1145, "char_count": 37460, "ocr_confidence": 0.751, "pagerank": { "raw": 2.844079204857286e-07, "percentile": 0.8401549665636877 }, "sha256": "35d6d67eb861be460bce167ecfd50b0e540d980b16ee8940edae303bf1d01329", "simhash": "1:8acf9e77236ed199", "word_count": 6327 }, "last_updated": "2023-07-14T20:48:00.616095+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Thornton, J., concurs." ], "parties": [ "Michael Drew KENNEDY v. STATE of Arkansas" ], "opinions": [ { "text": "DONALD L. Corbin, Justice.\nAppellant Michael Drew Kennedy was convicted in the Van Buren County Circuit Court of first-degree battery and sentenced to ten years\u2019 imprisonment. Appellant appealed his conviction to the Arkansas Court of Appeals, asserting that the trial court erred when it allowed a prior statement given by an eyewitness to be read into evidence by the police officer who took the statement. In a 4-2 decision, the court of appeals affirmed the judgment of conviction. See Kennedy v. State, 71 Ark. App. 171, 27 S.W3d 467 (2000). We granted Appellant\u2019s petition for review, pursuant to Ark. Sup. Ct. R. l-2(e)(ii). We affirm.\nThe record reflects that on July 27, 1997, around 2:30 a.m., a fight occurred outside the 659 Club, in Choctaw, Arkansas. The fight was primarily between Appellant and Lanny Bates, although there was testimony that Appellant\u2019s friend, Rodney Brown, was also involved. As a result of the fight, Bates received multiple knife wounds to his back, neck, throat, and face. Appellant received a cut on his hand. Bates was taken by ambulance to a nearby hospital and later air-lifted to UAMS in Little Rock. Appellant was subsequently arrested and charged with first-degree battery. No other arrests were made. At trial, Appellant claimed that he had acted in self-defense and that Bates was the initial aggressor. Appellant admitted that he had cut Bates two times in the back with his knife; however, he denied making any of the other cuts to Bates.\nThe State presented testimony from numerous persons who witnessed the fight. Only two of the State\u2019s witnesses, Bates and Kim Kennedy, had knowledge as to how the fight started. Kim, who is the wife of Appellant\u2019s first cousin, Mark Kennedy, gave a statement to Arkansas State Police Investigator Ross Dean, approximately one week after the fight. Kim told Dean that Appellant had started the fight, and that he had a knife in his hand. At trial, however, Kim did not recite the incident as she had to the police. Instead, she claimed that she could not recall much of the details about the fight. Specifically, Kim testified that she could not remember who started the fight or whether Appellant had a knife. When pressed by the prosecutor, she offered the excuse that she had been pregnant at the time and had been fighting with her husband. She also stated that she was nervous. When questioned about specific statements that she had made to police, Kim repeatedly claimed a lack of memory.\nAfter Kim was excused from the witness stand, the prosecutor recalled Dean and asked him to tell the jury what Kim had told him. Defense counsel objected to the testimony on the ground that it was hearsay. A hearing was then held outside the presence of the jury. The prosecutor argued that he should be permitted to impeach the witness with her prior inconsistent statements. Defense counsel countered that Kim\u2019s inability to recall what happened was not inconsistent with her statements to Dean. Defense counsel further argued that the prior statements would be prejudicial to the defense, and that Appellant would be deprived of the opportunity to confront the witness if her statement was offered through the officer. The trial court allowed the testimony under Ark. R. Evid. 613(b) and this court\u2019s holding in Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The trial court, however, did not allow the State to introduce the officer\u2019s written report of the statements.\nThereafter, Dean read Kim\u2019s statements to the jury. In pertinent part, Kim told the officer that she was in the parking lot of the 659 Club with her husband, Mark Kennedy, Bates, and another man. Kim saw Bates walk over to where Mark, Appellant, and Brown were standing. Kim followed Bates, but she could not hear what was being said, due to her hearing impairment. Kim saw Mark give Brown $10 to keep Brown from fighting him. Kim could not hear what Bates and Appellant were saying, but she observed a knife in Appellant\u2019s right hand. Kim then saw Appellant hit Bates in the face with his fist. The next thing she saw was that the knife had switched from Appellant\u2019s right hand to his left hand. She saw Bates fall to the ground, and she yelled for Mark to stop the fight. Mark declined, telling Kim that Bates had told him that he (Bates) could handle the fight himself. Kim then heard Bates call for Mark to help him. At that point, Mark grabbed Appellant and took him to his truck. Kim could see that Appellant had blood on his hand. When Bates, who was still on the ground, turned his head, Kim could see that his throat was cut.\nIn the court of appeals, Appellant argued that the trial court erred in allowing Kim\u2019s testimony to be impeached with extrinsic evidence of her prior statements to Dean. Specifically, he contended that (1) Kim\u2019s testimony was not inconsistent with her prior statements to police, as required by Rule 613(b); (2) Dean\u2019s testimony of her prior statements was impermissibly used and considered by the jury as substantive evidence, in violation of Ark. R. Evid. 801(d)(1)(i); and (3) he was denied his right to confront the witness because her prior statements were admitted through the testimony of Dean. The court of appeals rejected Appellant\u2019s arguments, relying entirely on this court\u2019s holding in Chisum, 273 Ark. 1, 616 S.W.2d 728. The dissent, on the other hand, concluded that Chisum was not applicable and had been limited in its scope by this court\u2019s holding in Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). We granted Appellant\u2019s petition for review in order to clarify any perceived inconsistencies in this court\u2019s decisions. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).\nFor purposes of clarification, we note that Appellant does not argue that it was error to allow the prosecutor to impeach Kim\u2019s testimony during his direct examination of her. Indeed, the record demonstrates that Appellant did not object to the prosecutor\u2019s questions to Kim about her prior statements to Dean. Thus, Appellant is not challenging the use of intrinsic evidence to impeach the witness. Rather, he argues only that it was error for the trial court to allow impeachment by extrinsic evidence, i.e., Dean\u2019s testimony of her prior statements. We discuss the points on appeal separately.\nI. Admissibility of the Prior Statements under Rule 613(b)\nAppellant first argues that the witness\u2019s lack of memory did not render her testimony sufficiently inconsistent with her prior statement to police. Correspondingly, he asserts that because her statements were not inconsistent with her testimony, the trial court erred in allowing the prosecutor to present extrinsic evidence of her prior statements. We disagree.\nA. Degree of Inconsistency Required\nThe first issue we must resolve is whether Kim\u2019s professed lack of memory of the particular details of the incident rendered her trial testimony inconsistent with her prior statement to police. This court has previously recognized that an \u201c \u2018inconsistent statement\u2019 as used in Rule 613, is not limited to those instances in which diametrically opposite assertions have been made.\u201d Roseby v. State, 329 Ark. 554, 564, 953 S.W.2d 32, 37 (1997), overruled on other grounds, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), (citing Truck Ctr. of Tulsa, Inc. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992); Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985)). See also United States v. McCrady, 774 F.2d 868, 873 (8th Cir. 1985) (quoting United States v. Dennis, 625 F.2d 782, 795 (8th Cir. 1980)) (holding that under Fed. R. Evid. 613, inconsistency \u201cmay be found in evasive answers, inability to recall, silence, or changes of position\u201d). This court has adopted Judge Weinstein\u2019s view that a statement is inconsistent \u201cwhenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.\u201d Roseby, 329 Ark. at 564, 953 S.W.2d at 37. Considerable discretion is given to the trial court when determining where the fine is drawn in the impeachment of a hostile witness, and those rulings will not be reversed absent an abuse of discretion. Id.; Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992).\nThe leading Arkansas case on this issue is Chisum, 273 Ark. 1, 616 S.W.2d 728. In that case, the appellant\u2019s sister, called as a witness for the state, testified that she had forgotten many of the details of the crime and had also forgotten what she had told the police in a prior interview. Due to her lack of memory, the trial court allowed the state to impeach her testimony by having the sheriff and his secretary narrate the statements given by the witness to the sheriff. On appeal, this court held that \u201cthe statements were unquestionably admissible for the purpose of impeachmentf.]\u201d Id. at 6, 616 S.W.2d at 730. This court reasoned that the fact that the witness had \u201cprofessed not to remember what she had said to the sheriff did not preclude the prosecution from using her prior inconsistent statements.\u201d Id. at 8, 616 S.W.2d at 731. This court relied on the case of Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889), in which it was held:\nThe 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.\nChisum, 273 Ark. at 8, 616 S.W.2d at 732 (emphasis added) (quoting Billings, 52 Ark. at 308, 12 S.W. at 575).\nSimilarly, in Roseby, 329 Ark. 554, 953 S.W.2d 32, the witness, who was related to the defendant, admitted making statements to the police, but claimed that she could not remember what she had said. After she was given the opportunity to review her prior statements, the witness stated that she could not remember saying those things because she was under the influence of drugs at the time. The prosecutor then proceeded to ask the witness about specific information that she had given to the police. Each time, the witness responded that she did not remember. On appeal, the appellant argued that the prosecutor should not have been allowed to impeach the witness with her unsworn statements because she did not directly contradict her prior statements; rather she merely declared that she could not remember them. This court disagreed, relying in large part on the decision in Chisum. This court noted that just as in Chisum, the witness\u2019s \u201cstatements that she \u2018forgot\u2019 were sufficiently inconsistent to allow the introduction of her prior sworn statement.\u201d Id. at 564, 953 S.W.2d at 37. This court then observed that it has \u201creached this same conclusion in numerous cases where a witness claimed to have forgotten a prior statement that is unfavorable to the defendant.\u201d Id. (citing Hughey, 310 Ark. 721, 840 S.W.2d 183; Flynn, 287 Ark. 190, 697 S.W.2d 114; Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927); Billings, 52 Ark. 303, 12 S.W. 574).\nThe facts of the present case are very similar to those in Chisum and Roseby. Here, the witness, Kim Kennedy, is married to the Appellant\u2019s first cousin. Kim gave the police a detailed account of the fight, approximately one week after the incident had occurred, in which she stated that Appellant had a knife, and that he threw the first punch. At trial, however, she claimed that she had forgotten many of the details that were crucial to the State\u2019s case. When questioned by the prosecutor about many of those details, she repeatedly claimed that she could not remember them. The pertinent parts of her testimony are as follows:\nBy Mr. James:\nQ. Okay. Kim, were you very close to what happened and saw what happened that night?\nA. I don\u2019t quite remember all that happened. I was pregnant at the time.\nQ. Okay. Kim, you made a statement to the police just a few days after this happened, isn\u2019t that right?\nA. Yes, sir.\nQ. And have you had a chance to review or would you like to review your statement?\nA. I\u2019ve already reviewed it, Sir.\nQ. Okay. So, what you told the police that day, was that what you remember happening?\nA. Part of it.\nQ. Part of it?\nA. Uh-huh.\nQ. Are you saying that now that you\u2019ve read your statement you\u2019re not sure about something?\nA. I \u2014-I can\u2019t quite remember all for sure. I wasn\u2019t really for sure.\nQ. Uh. .\nA. If it all happened. \u2018Cause me and my husband was in an argument. We were fussing and fighting.\n. . . .\nQ. Okay. All right. Now, during the fight, did you see a knife?\nA. Not, I can\u2019t remember. I don\u2019t quite remember.\nQ. Oh. Well, do you remember telling the police officer that you saw Michael Drew Kennedy with a knife in his hand?\nA. I don\u2019t remember seeing Michael Drew Kennedy with a knife.\nQ. And that you \u2014 you remember \u2014 do you remember telling the police officer that you saw him hit Lanny in the face with his fist?\nA. That\u2019s what I don\u2019t remember. I cannot remember if he did or not because that\u2019s when me and my husband both were standing there fighting; \u2018cause we were arguing.\nQ. Do you remember telhng the police officer that the next thing you saw was that Michael had the knife in his left hand, he had moved it from the right hand to the left hand?\nA. No, sir, I don\u2019t.\nQ. And then Lanny fell to the ground. Do you remember telling the police officer that?\nA. I can\u2019t remember if I did or not, sir.\nQ. Okay. Do you remember yelling to Mark to stop the fight?\nA. Pardon me?\nQ. Do you remember yelling to Mark at that point to stop the fight?\nA. I was, no. All I can remember was that [we] were talking about something and I was ready to go.\nQ. You were just talking about something and you were ready to go?\nA. Uh-huh. I can\u2019t quite remember.\n. . . .\nQ. Okay. I\u2019d like to show you a photograph. I\u2019m going to show you a picture it\u2019s State\u2019s Exhibit No. 4. Did you see a wound on Lanny Bates like that on his neck?\nA. I can\u2019t remember. I don\u2019t remember seeing no \u2014 I didn\u2019t \u2014 all I saw was him laying on the ground.\nQ. Do you remember telling the police officer that when Lanny turned his head while laying on the ground you could see that his throat was cut?\nA. That\u2019s all I can remember. That\u2019s all I could see was blood. That\u2019s just all I could see.\nQ. You don\u2019t remember telling the police officer \u2014\nA. I don\u2019t remember if his throat was cut or what. All I know I saw was blood.\n. . . .\nQ. Well, do you believe that you told the police officer the truth on the day that you talked to him?\nA. All I remember is what I told him what I saw and that\u2019s all I could remember at what I seen.\nQ. All right. But you weren\u2019t lying to him when you talkfed] to him, were you?\nA. No, sir.\nQ. Okay. So, if the police officer said that you told him these things on here, he would be telling the truth, wouldn\u2019t he?\nA. Well, sir, all I know is I \u2014 what I told the cop is what I think I know. I didn\u2019t \u2014 I wasn\u2019t for sure. I just know what I thought.\nQ. Okay.\nA. But I was not for sure.\nQ. But you wouldn\u2019t make up some specific things if you weren\u2019t pretty sure; like Michael Drew Kennedy having a knife in his hand, like Lanny Bates having his throat cut. You wouldn\u2019t have guessed on these things, would you?\nA. No, sir. I do not guess on them things. I\u2019m just \u2014 I\u2019m for sure.\nBased on the foregoing exchange, we conclude that the witness\u2019s trial testimony was sufficiently inconsistent with her prior detailed statements to the police. Her claimed loss of memory, which was conveniently favorable to Appellant, her husband\u2019s first cousin, was similar to the testimony given by the witnesses in Chisum and Roseby. Accordingly, it was not error to allow impeachment of the witness.\nB. Extrinsic Evidence\nThe next issue is whether the trial court erred in allowing the State to present extrinsic evidence of the witness\u2019s prior inconsistent statements under Rule 613(b), which provides in pertinent part:\nExtrinsic 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[.]\nUnder this rule, three requirements must be met before extrinsic evidence of a prior inconsistent statement will be admissible. First, the witness must be given the opportunity to explain or deny the inconsistent statement. Second, the opposing party must be given the opportunity to explain or deny the witness\u2019s inconsistent statement. Third, the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. Additionally, this court has held that when the witness admits to having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness\u2019s credibility. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). In other words, once a witness acknowledges having made a prior inconsistent statement, the witness\u2019s credibility has successfully been impeached. \u201cAn admitted liar need not be proved to be one.\u201d Id. at 18, 753 S.W.2d at 263 (quoting Gross v. State, 8 Ark. App. 241, 250, 650 S.W.2d 603, 608 (1983)). Where, on the other hand, 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. See 1 John W Strong, McCormick on Evidence \u00a7 34, at 126 (5th ed. 1999). See also United States v. Cline, 570 F.2d 731 (8th Cir. 1978).\nIn the present case, the requirements for admitting extrinsic evidence of the witness\u2019s prior inconsistent statements were met. First, the foregoing exchange between the prosecutor and the witness demonstrates that the witness was given an opportunity to. explain or deny the prior statements. During her questioning, Earn consistently demonstrated an inability to recall the facts or to remember what she had previously said to the police. We disagree with Appellant\u2019s assertion that Kim admitted making the prior statements. Her testimony in to to reflects that the only thing that she fully admitted was that she had given a statement or interview to the police. When asked about specific information or particular statements that she made, she professed a lack of memory. Indeed, even when she stated that she had not lied to the police or guessed at the details that she had previously provided, she hedged her answers by stating that she told the police what she thought she knew, but that she was not \u201cfor sure\u201d about what happened. Her exact testimony bears repeating: \u201cWell, sir, all I know is I \u2014 what I told the cop is what I think I know. I didn\u2019t \u2014 I wasn\u2019t for sure. I just know what I thought.... But I was not for sure.\u201d These answers are hardly full and unequivocal admissions of having made the prior inconsistent statements. See Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983).\nThe second and third requirements of Rule 613(b) were also met. Appellant was given the opportunity to explain or deny the witness\u2019s prior inconsistent statements, and he was given the opportunity to interrogate her about them. The record reflects that Appellant was able to conduct a full cross-examination of the witness, during which defense counsel attempted to rehabilitate her credibility. For example, defense counsel pointed out that it had been some nineteen months between the time the crime had occurred and the time of trial. Defense counsel also attempted to suggest that the witness was either too far away to have seen much of the fight or was too distracted from fighting with her husband to be able to accurately recall the event. Accordingly, the trial court did not abuse its discretion in allowing the State to present extrinsic evidence of the witness\u2019s prior inconsistent statements.\nWe reject Appellant\u2019s reliance on the holdings in Roberts, 278 Ark. 550, 648 S.W.2d 44, and Smith, 279 Ark. 68, 648 S.W.2d 490. Neither of those cases presented facts that would have sustained the use of extrinsic evidence for impeachment. Both cases involved witnesses who admitted that they had made prior inconsistent statements and that those prior statements were false. Thus, under Rule 613(b), extrinsic evidence was not admissible. Moreover, in Roberts, the state was aware before the trial that the witness had recanted his prior statements. Nonetheless, the trial court allowed the state to introduce the complete text of the witness\u2019s statement through a deputy sheriff. This court reversed, holding that \u201c[o]nce a witness has fully and unequivocally admitted making the prior inconsistent statement, then it cannot be proven again through another witness.\u201d Roberts, 278 Ark. at 552, 648 S.W.2d at 46 (citing McCormick, Evidence \u00a7 37, at 72-73 (2d ed. 1972)). This court held further that because the prior statement was unsworn, it could not be admitted as substantive evidence under Rule 801 (d) (1) (i). This court ultimately concluded that the impeachment of the witness in that situation was \u201ca mere subterfuge\u201d for the prosecution\u2019s true intention of introducing the hearsay statements as substantive evidence of the defendant\u2019s guilt. Id. Under those circumstances, this court held that the error was not cured by an instruction to the jury directing them to consider the prior statements for impeachment purposes only.\nOne month after the decision in Roberts, this court decided Smith, 279 Ark. 68, 648 S.W.2d 490. In that case, the witness recanted his prior statements on the witness stand, while testifying for the state. The witness readily admitted that he had lied in his previous statements to the police, and that he had falsely implicated the defendant in the crime charged. Despite his full and unequivocal admissions, the prosecutor sought to introduce the witness\u2019s written statement previously given to police. The trial court initially sustained defense counsel\u2019s objection that the statement was hearsay. Later, however, the prosecutor was permitted to read the statement to the jury over the defense\u2019s objection. On appeal, this court reversed on the ground that it was \u201cmanifest from the record that [the witness\u2019s] written statement was read to the jury, not for purposes of impeachment, but as substantive evidence to prove the truth of the matters asserted in it.\u201d Id. at 69, 648 S.W.2d at 491. As in Roberts, the decision in Smith turned on the pivotal fact that the witness had admitted making the prior inconsistent statements and had admitted that he had lied. Under those circumstances, extrinsic evidence of the lies was not admissible.\nContrary to the position taken by Appellant and the dissent in the court of appeals, the holding in Smith, 279 Ark. 68, 648 S.W.2d 490, did not limit that in Chisum, 273 Ark. 1, 616 S.W.2d 728. Smith merely concluded that Chisum was not controlling, because the witness had admitted to the jury that he had lied in his previous statements. Thus, through his own admission, his believability had been impeached, and extrinsic evidence of his prior statements was not admissible under Rule 613(b). Furthermore, because they were not given under oath and subject to the penalty of perjury, the prior statements were not exempt from the hearsay rule under Rule 801(d)(1)(i). Thus, the decision in Smith did not turn on the form of the evidence used, i.e., the witness\u2019s prior statements read in their entirety by another person. Rather, that decision turned on what this court concluded were impermissible purposes for admitting the evidence. Accordingly, Smith, does not stand for the proposition that it is error to allow the impeachment of a witness by introducing extrinsic evidence of prior inconsistent statements through the testimony of a second witness or through the admission of documentary evidence. Were that the case, Rule 613(b) would have no meaning. Nor does Smith stand for the proposition that a witness may not be impeached with prior inconsistent statements unless those statements were given under oath and are thus admissible as substantive evidence. Again, were that the case, Rule 613(b) would have no meaning independent of Rule 801(d)(1)(i).\nIn sum, the factual circumstances presented in Roberts and Smith precluded the use of extrinsic evidence to impeach the witnesses, who both admitted to having lied in their prior statements. The facts here are quite distinguishable from those. In this case, the witness did not fully and unequivocally admit that she had made the incriminating statements to the police. Rather, all she admitted was that she had given an interview to the police. Her testimony reveals that when asked about specific statements that she had made to the officer, she repeatedly professed a lack of memory. As such, the holdings in Roberts and Smith are not controlling of this appeal, and the trial court did not err in allowing the witness to be impeached through the admission of extrinsic evidence of her prior inconsistent statements.\nII. Use of Prior Inconsistent Statements as Substantive Evidence\nIn a related argument, Appellant contends that Smith, 279 Ark. 68, 648 S.W.2d 490, mandates reversal because the prosecutor impermissibly used Kim\u2019s prior statements to police, introduced through the officer, as substantive evidence of Appellant\u2019s guilt, in violation of Rule 801(d)(1)(i). Specifically, Appellant points to the prosecutor\u2019s repeated references to Kim\u2019s prior statements during his closing argument to the jury. Appellant thus contends that the prosecutor\u2019s actions demonstrate that the evidence was not admitted as impeachment evidence, but as substantive evidence of his guilt. We reject this argument for two reasons.\nFirst, the record is devoid of any objection to the improper use of the evidence during the prosecutor\u2019s closing argument. Because he failed to make a timely objection in the trial court, he has waived this argument on appeal. See, e.g., Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). The record reflects that during the in-chambers hearing held prior to the introduction of the statements, the trial court ruled that it was admitting the testimony as impeachment evidence under Rule 613(b) and Chisum, 273 Ark. 1, 616 S.W.2d 728. Had Appellant objected to the prosecution\u2019s later use of the statements as substantive evidence, the trial court would have undoubtedly sustained the objection.\nSecond, we reject Appellant\u2019s argument because he failed to ask for a limiting instruction directing the jury to consider the prior statements only for purposes of determining the witness\u2019s credibility. \u201cWhen 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.\u201d Chisum, 273 Ark. 1, 9, 616 S.W.2d 728, 732 (citing City of Springdale v. Weathers, 241 Ark. 772, 410 S.W.2d 754 (1967); Shipp v. State, 241 Ark. 120, 406 S.W.2d 361 (1966); Uniform Evidence Rule 105). Similarly, Ark. R. Evid. 105 provides that when evidence is admissible for one purpose but not another, it is up to the objecting party to request a limiting instruction from the trial court. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). When an appellant contends that the failure to give a cautionary or limiting instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000).\nIn the present case, as discussed above, the witness\u2019s prior statements were properly admitted for the purpose of impeaching her testimony at trial. It was thus Appellant\u2019s burden to request a limiting instruction directing the jury to consider her prior inconsistent statements only for the purpose of judging the witness\u2019s credibility, and not for the truth of the matter set forth therein. See AMCI 2d 202. Because there was no request for a limiting instruction, the trial court was not required to give one.\nAgain, we are not persuaded by Appellant\u2019s reliance on Smith, 279 Ark. 68, 648 S.W.2d 490, and Roberts, 278 Ark. 550, 648 S.W.2d 44. In those cases, extrinsic evidence of the witnesses\u2019 prior statements was not admissible for any proper purpose. Because the witnesses admitted to having lied in their prior statements, the statements themselves had no impeachment value and were thus not admissible under Rule 613(b). Moreover, because, the prior inconsistent statements were not made under oath, they were not alternatively admissible under Rule 801 (d) (1) (i). Accordingly, the error in admitting the prior statements in Smith and Roberts could not have been cured by a limiting instruction.\nIII. Right to Confrontation of the Witness\nFor his last point for reversal, Appellant argues that he was denied his right to confront the witness about her prior inconsistent statements because they were admitted through the testimony of another witness. He argues that it was not possible to ask the officer about Kim\u2019s powers of observation and perception at the time, as well as the physical circumstances that may have affected her statements about the fight. We find no merit to this argument, as Appellant was afforded a full opportunity to ask Kim about the circumstances surrounding the fight and her prior statements to Dean.\nThe Confrontation Clause, found in both the United States and Arkansas Constitutions, is intended to permit a defendant to confront the witnesses against him and to provide him with the opportunity to cross-examine those witnesses. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Appellant was not denied his right to confront Kim at trial, nor was he denied the right to fully cross-examine her regarding her prior inconsistent statements. As evidenced by her direct testimony, set out above, the prosecutor asked Kim about the individual statements that she had made to the police. Appellant was then allowed to cross-examine her about those statements.\nThe record reveals that defense counsel cross-examined Kim on how close she stood to the fight, the effect of her fight with her husband, and the fact that the trial took place over a year and a half after the fight. Had he chosen to do so, he undoubtedly would have been allowed to ask her about the lighting that night, the type of knife that she allegedly saw Appellant use, the effect of her pregnancy on her ability to remember and recall the event, and any other issue that he now claims may have touched upon her ability to recall. There is no indication from the record that the trial court in any way attempted to limit Appellant\u2019s cross-examination of Earn. The record also reflects that Appellant was given a full opportunity to cross-examine Dean about the circumstances of his interview of Kim. Appellant certainly could have called Kim as his own witness if he had any further questions stemming from Dean\u2019s testimony of her statements. We thus conclude that Appellant was not denied the right to confront the witnesses against him.\nIV Conclusion\nThe trial court did not err in allowing the prosecutor to impeach Kim with her prior statements, as Kim\u2019s testimony was sufficiently inconsistent with her prior statements to the police. Moreover, because Kim was given the opportunity to explain or deny the prior inconsistent statements and did not admit having made the statements, it was not error to allow the prosecutor to introduce extrinsic evidence of her prior statements under Rule 613(b). Because the prior statements were properly admitted for impeachment purposes, and not for the truth of the matter asserted by them, the statements were not hearsay. Thus, it was irrelevant that they were not given under oath and subject to the penalty of perjury, as provided in Rule 801(d)(l)(i). That the prior statements were later used as substantive evidence by the prosecutor during closing argument is of no consequence, as Appellant did not make a timely objection, nor did he ask for a Hmiting instruction directing the jury to consider the prior statements only as impeachment evidence. Lastly, there was no violation of Appellant\u2019s right to confront the witness due to the admission of extrinsic evidence of the witness\u2019s statements. Appellant was afforded a full and fair cross-examination of the witness. We thus affirm the judgment of conviction.\nThornton, J., concurs.", "type": "majority", "author": "DONALD L. Corbin, Justice." }, { "text": "RAY THORNTON, Justice,\nconcurring. In my view, it was error to allow Kimberly\u2019s previously unsworn statement to be admitted into evidence, and to be used as substantive evidence supporting Michael Kennedy\u2019s conviction.\nThe only permissible use of the unsworn statement was to impeach Kimberly\u2019s credibility as a witness. Kimberly did not deny making a prior inconsistent statement, but responded to a detailed cross-examination revealing the inconsistencies between her sworn statement during trial with the notes made by Officer Dean concerning what he heard her say within a few days of the incident.\nPerhaps the use of Officer Dean\u2019s notes for purposes of cross-examination was appropriate to impeach Kimberly\u2019s sworn testimony at trial, but such use is a far cry from allowing Officer Dean\u2019s notes of his recollection of an earlier unsworn statement to be read to the jury and used by the prosecutor as substantive evidence of the commission of the crime.\nBy allowing the officer\u2019s notes to be read to the jury as a reflection of an earlier unsworn statement by Kimberly, we are standing the prohibition against hearsay on its head, and the use of Officer Dean\u2019s notes for that purpose was clearly an abuse of discretion. In Smith v. State, supra, the fact that a prior inconsistent statement was read in its entirety to the jury, and treated as substantive evidence in argument by trial counsel, convinced us that the statement was impermissibly used as substantive evidence and was not used merely for impeachment.\nIn this case, by having Officer Dean read his notes of Kimberly\u2019s prior unsworn statement to the jury and by using it as substantive evidence in its closing argument, the State used Kimberly\u2019s statement in precisely the manner that was proscribed by Smith v. State, supra.\nIn closing arguments, the State treated Kimberly\u2019s unsworn statement as if it were substantive evidence. Specifically, the prosecutor argued:\nKimberly Kennedy gave a very detailed statement to the police on August 4, 1997, which was a week after this incident. She had seven days to calm down and think about it. She saw a knife in Michael\u2019s right hand and in the left hand. She saw Lanny fall. She saw her husband pull Michael off of Lanny and take him back to the truck. Kim saw Michael hit Lanny first. That was her statement. The first blow Kim talked about was Michael striking Lanny in the face. That\u2019s what she said.\nThe prosecutor never points out that the earlier statement on which he relies was unsworn and not admitted as substantive evidence. The prosecutor also explained to the jury that they should \u201cbelieve\u201d Kimberly\u2019s earlier statement because, as a person with a hearing impairment, she was \u201cmore perceptive\u201d and a better \u201cobserver.\u201d\nHowever, as clear as the error in using an unsworn statement for substantive proof supporting a conviction, it is regrettably equally clear that Kennedy did not request a limiting instruction to allow consideration of the prior statement only for impeachment purposes, and no objection was made to the prosecutor\u2019s flagrant use of the unsworn statement as substantive evidence supporting a conviction during closing arguments. As the majority correctly notes, we have often held that the failure to make a timely objection, thereby allowing the trial court to rule on the issue, prevents us from reaching a point on appeal. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). For that reason, I reluctantly concur in the result.", "type": "concurrence", "author": "RAY THORNTON, Justice," } ], "attorneys": [ "Perroni & James Law Firm, by; Samuel A. Perroni and Janan Arnold Davis, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Michael Drew KENNEDY v. STATE of Arkansas\nCR 00-1250\n42 S.W.3d 407\nSupreme Court of Arkansas\nOpinion delivered April 19, 2001\nPerroni & James Law Firm, by; Samuel A. Perroni and Janan Arnold Davis, for appellant.\nMark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0433-01", "first_page_order": 463, "last_page_order": 482 }