Lambert v. State

GIVAN, Justice,

dissenting.

I respectfully dissent from the majority opinion on a petition for rehearing. The matters recited in the majority opinion' were placed before the jury for its consideration.

I do not agree that the trial court violated the Patterson rule. The very purpose for the witness being available for cross-examination after an out-of-court statement is placed before the jury is to verify such statement. When the witness fails to verify that statement, I see no difference than when a witness makes a positive statement on direct examination and recants that statement on cross-examination. This type of situation presents the jury with conflicting evidence which it must weigh and resolve. I believe it to be improper for this Court to invade the province of the jury.

I would affirm appellant’s conviction.

PIVARNIK, J., concurs.