Wilde v. State , 74 P.3d 699 ( 2003 )

GOLDEN, J.,

specially concurring.

[T83] I agree that Wilde's conviction must be reversed; however, I depart with the majority on its resolution of the prior consistent statements issue. After reciting the Stephens rule that prior consistent statements are nonhearsay and admissible as either substantive evidence or for rehabilitative purposes, the majority decides that the trial court erred in admitting "hearsay testimony during the State's case-in-chief." The majority holds that the trial court abused its discretion by admitting hearsay testimony by the mother, sister, police officer, physician, nurse, and forensic interviewer that repeated the victim's allegedly fabricated story and holds that the abuse of discretion is reversible error because the repetition was highly prejudicial. A careful review of precedent shows that this Court has long held that, as a general rule, these kinds of statements are not hearsay, it is not an abuse of discretion to admit them when the defense has challenged the victim's credibility, and repetition is not reversible error.

[¶ 34] In a long line of cases, we have rejected the notion that W.R.E. 801(d)(1)(B) requires that the motive to fabricate must come after the hearsay statements in order for those statements to be admissible as pri- or consistent statements. Cook v. State, 7 P.3d 53, 58 (Wyo.2000); Dike v. State, 990 P.2d 1012, 1024 (Wyo.1999); Frenzel v. State, 849 P.2d 741, 751 (Wyo.1993); Montoya v. State, 822 P.2d 363, 367 (Wyo.1991); Stephens v. State, 774 P.2d 60, 71 (Wyo.1989); Baum v. State, 745 P.2d 877, 881 (Wyo.1987); Makinen v. State, 737 P.2d 345, 349 (Wyo.1987). Most recently, we rejected the reasoning followed by the United States Supreme Court's decision in Tome v. United States, 513 U.S. 150, 165, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), which held that a temporal requirement did apply under the federal rule. Cook, 7 P.3d at 58; Dike, 990 P.2d at 1024. We have also established that the charge of fabrication can arise by defense's pretrial assertions about its defense theory. Lancaster v. State, 2002 WY 45, ¶ 18, 43 P.3d 80, ¶ 18 (Wyo.2002); Alicea v. State, 13 P.3d 693, 698-99 (Wyo.2000); Humphrey v. State, 962 P.2d 866, 872 (Wyo.1998).

[¶ 35] This considerable history illustrates this Court's comfort with interpreting Rule 801(d)(1)(B) as allowing consistent statements when credibility is at issue because of allegations of improper influence or recent fabrication. The precise rule was articulated in Stephens and was upheld as recently as our decision in Dike when eight witnesses repeated the victim's story as prior consistent statements and no limiting instruction was given to the jury. Stephens, 774 P.2d at 71-72; Dike, 990 P.2d at 1024. When this precedent is applied to the statements at issue in this case, I do not see how any conclusion can be drawn but that they, too, are postmotive prior consistent statements that are admissible nonhearsay statements.

[¶ 36] Nor do I see how the admission of these statements during the State's case-in-chief should now be significant in determining error occurred when previously we have paid little attention to that fact. In Lancastor, a videotape was admitted during the State's case-in-chief, Lancaster, 1 10, and no discussion was given to that fact in this Court's opinion. Alice@ denied that any error occurred when the State presented prior consistent statements in its case-in-chief although the defense went to great lengths to prevent any justification for such admission by waiving opening statements and eross-examination. 13 P.3d at 698. Alicea found no error upon determining that the defense's theory would focus upon an express charge of recent fabrication or improper influence or motive. Id. at 698-99. Humphrey did find that it was error for the State to present a prior consistent statement during its case-in-chief before fabrication was alleged but ruled that the error was de minimis and resulted in no prejudice. 962 P.2d at 872. The majority attempts to distinguish based on whether the statements were made before reporting to authorities. However, that distinction is irrelevant because any temporal concern relates only to whether the statement may be offered as substantive evidence or whether the defense, if it requested, would be entitled to an instruction limiting the evidence for the purpose of evaluating eredibility.

[¶ 37] In this case, the defense claimed that a motive to fabricate arose well before trial when the mother attempted to extort a vehicle from Wilde. The statements here are therefore postmotive and consistent with the victim's testimony at trial. Accordingly, the statements were admissible as nonhearsay under Rule 801(d)(1)(B) as rebuttal evidence. Humphrey, 962 P.2d at 872. Although the statements were admitted without limitation and then repeated by six witnesses, Dike has decided that oceur-rence is not reversible error. The majority has, however, decided that this occurrence is highly prejudicial and reversible error and the district court will be left to wonder what difference permits these two different results.

[¶ 38] We are all aware that the lack of a temporal requirement can lead to misuse, and we have all noted a pattern arising in child sexual assault cases where victims are interviewed by authority figures each of whom then repeat the victim's story at trial. This pattern raises two questions: whether interviews are arranged just to create "prior consistent statements" for presentation at trial, and, if so, whether these interviews constitute a misuse of the rule. Our precedent warns against this type of trial strategy, Baum, 745 P.2d at 882 (Cardine, J., dissenting), while at the same time recognizing that repetition is of so little probative value it may not be prejudicial. Stephens, 774 P.2d at 72. I am not adverse to addressing whether the misuse that our precedent has long warned us of has now come to pass and requires action on our part.

[¶ 39] If the majority has decided that admission of postmotive consistent statements made before the declarant's testimony produced a fundamentally unfair trial for Wilde, then the majority should articulate that basis for its decision. If, however, the majority has decided that these cireum-stances require that stare decisis should give way, then imposition of a temporal requirement must be discussed. Until that reasoning is presented, I must disagree with the majority's decision to depart from precedent without analysis.

[¶ 40] I must also question why the majority would find that AN was competent to testify but may have been coached about what she had seen at the time that AM alleges Wilde was sexually assaulting her. We have previously held that when taint is alleged, a competency hearing must determine whether a suggestive interview or coaching occurred and, if it did, whether that coaching has infected the witness' ability to independently recall events to such an extent that her testimony would be too unreliable to admit at trial English v. State, 982 P.2d 139, 145-46 (Wyo.1999). If the trial court failed to properly conduct the competency hearing, the majority errs in stating that "Iwle do not question in any way the trial court's decision that the victim was competent to testify." The appropriate resolution is to remand the reliability issue for rehearing upon retrial.