In truth, an out-of-court statement will often fall under multiple hearsay exceptions in KRE 801A, 803, or 804, but it need only satisfy one of those exceptions (and, of course, be relevant and survive KRE 403) to be admissible. Appellant's argument assumes that because Edlin repeated some prior statements that are consistent with the victim's testimony, the admissibility of those statements can only be controlled by the prior-consistent-statement rule.
For example, Edlin repeated the victim's statement about the source of the injuries to her neck (manual strangulation), which was consistent with the victim's trial testimony.
But as she took the phone and began to dial, Appellant ran out of the apartment and knocked the phone out of her hand. At trial, Appellant was convicted of first-degree sodomy, second-degree wanton endangerment, intimidating a participant in the legal process, third-degree terroristic threatening, and being a first-degree PFO. Appellant was sentenced to thirty years' imprisonment. Thus, in Appellant's view, Edlin's testimony was duplicative and without its own probative force, and its admission acted only to bolster the victim's testimony. W.3d 451, 472 (Ky.2005) ( “It is improper to permit a witness to testify that another witness has made prior consistent statements, absent an express or implied charge against the declarant of recent fabrication or improper influence. Otherwise, the witness is simply vouching for the truthfulness of the declarant's statement, which we have held to be reversible error.”); Smith v. W.2d 514, 517 (Ky.1995) (“[A] witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony.” (quoting Eubank v. The rule that Dickerson and Smith, and the Appellant, are concerned with is KRE 801A(a)(2), which excludes certain statements from the hearsay rule, so long as they meet its requirements.
She ran around the tent, with him chasing her and waving his gun. He now appeals his conviction and sentence as a matter of right. This, Appellant claims, is clearly forbidden under Kentucky law. This rule is not a bar to the admission of testimony and can only ever be authority for the admission of evidence despite the hearsay prohibition in KRE 802.
Failure to consider this first step of analysis incorrectly leads to a focus on the hearsay exceptions as the source of inadmissibility.
This incorrect method of analysis is evident in the common practice of leaping to a single (and usually the most obvious) hearsay exception and, upon seeing that the proof does not meet the exception, assuming the proof is wholly inadmissible, simply because it does not meet that single exception.
Despite some reservations, the Court concludes that this issue is preserved for appeal.
Edlin repeated the statement at issue in response to being asked about the victim's answers to questions about her personal medical history, specifically whether the victim had recent consensual sexual activity or recent injuries to her genitals.
Because of her state, he asked her why she wanted to use the phone, and she told him to call her mother. A warrant was issued for Appellant's arrest, and he was eventually taken into custody. Appellant argues that the totality of Edlin's testimony was inadmissible because it served only to corroborate the victim's testimony by proof that she had previously made the same statements to Edlin, and it was not proper prior-consistent-statement testimony absent a recent claim of fabrication or improper influence. See KRE 802 (“Hearsay is not admissible except as provided by these rules or by rules of the Supreme Court of Kentucky.”).
Specifically, he alleges that Edlin's repetition of the victim's statement “We never had anal intercourse” fell outside KRE 803(4), as a statement not for the purpose of medical diagnosis or treatment.
Further, he complains that even if the statement was partially admissible under KRE 803(4), it went beyond the scope of the rule because it identified him as the perpetrator of the crime.
Goyette, Louisville Metro Public Defender of Counsel, Office of the Louisville Metro Public Defender, Elizabeth B. District Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
Jack Conway, Attorney General, Matthew Robert Krygiel, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.