State v. Foster ( 2003 )

JUSTICE MOORE

DISSENTING:

I agree with the majority that counsel’s cross-examination of Michelle regarding allegedly inconsistent statements did not rise to the level of charging recent fabrication or improper motive, and therefore her prior consistent statement was not admissible under Rule 801(d)(1)(B). State v. Saltz, 346 S.C. 114, 551 S.E.2d 240 (2001). I part company with the majority, however, in its rejection of the State’s argument that counsel “opened the door” to the admission of Michelle’s statement.

In context, counsel questioned Michelle as follows:

Q: What day did you talk with Tammy Shealy and Todd Johnson, do you remember?

A: Not at all.

Q: Was it several days later?

A: I think it was the 28th.

Q: So that would be Tuesday.

A: Yeah.

Q: Your statement which you gave them is more or less the version you have given us today; is that not correct? A: Yes.

Q: Michelle, this is quite important. I have got a question to ask you now. Did you ever give anybody any other statements regarding this incident that differ from the version you gave Mr. Johnson and Mrs. Shealy?

A: No.

Counsel then questioned Michelle regarding “conversations with anybody on Sunday morning or Sunday afternoon” wherein she stated her mother’s killing was an accident.

In asking Michelle whether her statement to police was “more or less the version you have given us today” and whether her statement to police differed from her earlier conversations, counsel raised the issue of the statement’s content. Since the defense raised the issue of Michelle’s statement to police, it was only fair to allow the State to put the statement into evidence so the jury could evaluate the statement’s content for itself. See State v. Robinson, 305 S.C. 469, 409 S.E.2d 404 (1991) (one who opens the door to evidence cannot complain of its admission).

I disagree that Saltz prohibits the admission of Michelle’s statement under an “opening the door” analysis. As stated in Saltz, the precise issue in that case was “whether questioning the witness concerning a prior in consistent statement invokes Rule 801(d)(1)(B).” 346 S.C. at 123, 551 S.E.2d at 245 (emphasis in original). Saltz holds examination regarding inconsistent statements does not amount to a charge of fabrication to justify admission of a consistent statement under that rule. Here, counsel directly questioned the witness about the consistent statement itself, an issue not before the Court in Saltz.

Because counsel opened the door to the admission of Michelle’s statement, I would reverse the Court of Appeals and reinstate Foster’s conviction. Accordingly, I respectfully dissent.

TOAL, C.J., concurs.