# FILED
March 9, 1998 Cecil W. Crowson Appellate Court Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: March 9, 1998
STATE OF TENNESSEE, ) DAVIDSON COUNTY CRIMINAL ) No. 93-B-879 APPELLEE, ) ) v. ) Hon. Seth Norma n, Judge ) HENRY LEE MARTIN, ) ) APPELLANT. ) No. 01S01-9611-CR-00225

FOR APPELLANT : FOR APPELLEE : Jeffrey A. DeVasher John Knox Walkup Assistant Public Defender Attorney General and Rep orter Nashville AND James P. McNamara Assistant Public Defender Michael E. Moore Nashville Solicitor General Karen M. Yacuzzo Assistant Attorney General Nashville



# O P I N I O N

AFFIRMED AS MODIFIED HOLDER, J.2 OPINION
A jury convicted the defendant, Henry Lee Martin, of especially aggravated robbery. He was sentenced to tw enty-two years imprisonment and fined five thousand dollars. The Court of Criminal App eals affirmed both his conviction and his sentence. We granted review to determine whether Tenn. R. Evid., Rule 613(b) mandates that a foundation be laid prior t o the introduction of extrinsic evidenc

e of a witness' prior inconsistent statement. We hold that extrinsic evidenc

e remains inadmissible until: (1) the witness is asked whether the witness made the prior inconsistent statement; and (2) the witness denies or equivocates as to hav

ing made the prior inconsistent statement.

FACTS
On February 24, 1993, the defendant entered a One Price Clothing store in Nashville. Ms. Hollingsworth testified that she spoke with the defendant for approximately ten minutes and showed him several garments. She, however, became frustrated at the defendant's indecisiveness. She told the defendant to let her know if he requi red further assistance. She w ent back to the front of the store. A short time later, the defendant again requested her assistance. She assisted him for an additional fiv e to ten minutes. The defendant requested a garment in a size not on the rack. Ms. Hollingsworth then went into the stockroom to determine whether they had the garment in the requested size.
Ms. Hollingswor

th had a short conversation with another store emplo yee, Ms. Blakely, while in the stockroom. Ms. Hollingsworth then realized that the defendant had followed her part of the w ay into the stockroom. She turned to3 the defendant, informed him that the reques ted size was not av

ailable and asked whether there was any thing else

she could show him.
The defendant later requested Ms. Hollingsworth’s assistance for a third time. On this occasion, the defendant appeared to have an object in his hand. He lured her into a back c orner of the store. As she w as taking an item from the rack, the defendant stabbed her and thr ew her onto the floor. He then pulled her to her feet, stood behind her and held a knife to her throat.

The defendant directed both Ms. Hollingsworth and Ms. Blakely to enter the stockroom where he bound Ms. Blakely's hands and feet together with duct tape. He then forced Ms. Hollingsworth to accompany him to the cash register

. Ms. Hollingswor

th told the defendant how to open the r egister. The defendant then led Ms. Hollingsworth back into the stockroom where he asked Ms. Blakely to confirm the procedure for opening the cash register w

ithout setting off an alarm.
The defendant and Ms. Hollingsworth proceeded back to the cash register. She opened the r egister and placed the register's contents into a bag

. The defendant led Ms. Hollings worth back into the stockroom and forced her to lie on the stockroom floor next to Ms. Blakely. He then placed boxes and chairs on top of them and fled the store.
Ms. Hollingswor

th was able to crawl out from beneath the boxes and chairs. She then summoned help from a customer who had entered the store. She was tra nsporte d to the h ospital wh ere she sp ent thirt y-six hours i n intensi ve care and an additional three day s in a regular hospital

room prior to being4 released. She sustained a collapsed lung as a result o f the defendant having stabbed her.
Ms. Hollingswor

th provided the police w ith a description of the defendant. She later was able to identify the defendant from a photographic line-up. She testified that she had no doubts concerning her identification of the defendant as the perpetrator.
Ms. Blakely testified that she had worked at the One Price Clothing Store on February 24, 1993. She stated that she had seen the d efendant in the store on February 24, 1993, and that Ms. Hollingswor th had assisted the defendant. She further stated that she got a good look at the def endant while Ms. Hollingsworth w

as assisting him. Ms. Blakely was posi tive that the defendant was the perpetrator.
Lennie Covington, the in vestigating officer, t

estified. He stated that an apartment where the defendant had resided in February, 1993, w as located on a hill that over

looked the One Pr

ice Clo thing S tore. He identified phot ographs of a path which lead from the apartment complex where the defendant had resided to the One Price Clothing S tore.
Patricia Berry, the defendant's girlfriend, testified as an alibi witness. She stated that she and the defendant had resided together in February, 1993. She stated that they injected c ocaine on a daily basis and that she and the defendant supported their habit by s tealing. Their typic

al day consisted of "get[ting] high" and shoplifting to "get some mor e [dope]." Ms. Berry tes tified that on the date of the robbery, she had wor ked until three o'clock in the afternoon. She and the defendant "did some coca ine" that aft ernoon and lat er "went out boos ting,5 shoplifting" so that they c ould purchase more cocaine. On cross examination, Ms. Berry appeared to hav e some initial confusion as to w hether she had worked on February 23 or February 24, the date of the robbery. She, however, maintained that she could remember the events of those days clearly and that the defendant w

as with her

at their apartment, injecting coc aine during

the time of the robbery.
During the state’s cr

oss examination, Ms. Ber ry admitted talking t

o officer Covington, the arres

ting officer, at the time of the arr est. She agreed that she did not tell officer Coving ton that the defendant could not have c ommitted the robbery because he had been w ith her at the time of the arrest. The following colloquy oc curred be tween the state an d Ms. Berry:
Q. And you knew that [the defendant] had not done that because he had been with you, and the two of you were together? A. Yes. Q. Did you tell Detec

tive Covington tha

t? A. No, Sir. I didn't tell nobody nothing. I hav en't talked to anybody. Q. You talked to Detecti ve Covington that day, didn't you? A. That day he picked us up from M urfreesboro? We both talked to him, yes. . . . I probabl y did. I was think

ing the day that I w

orked was on a Tuesday. And it was not on a Tuesday. It w as on a Wednesday. At the beginning. . . . I mistaked [sic] my days.

. . . Q. Okay. My que

stion to you was, did you tell Officer Covington when you were arr

ested that he couldn't have done it, that he was with me that day at my apartment? A. No. I did not tell him that.6 On rebuttal, the state called officer Covington to testi fy that the defendant initiated a conversation while the defendant and Ms. Ber ry were in the back

seat of Covington's car. The de fendant asked on what date the robber y occurred. When told the date, Martin then turned to Ms. Berry and asked if she knew where he had been on that night. Ms. Berry resp onded, "I don't know wher e you were, I was in the motel."

DISCUSSION

The issue with whic

h we are confronted is w hether the officer's testimony was properly admitt

ed as extrinsic ev

idence of a prior inconsistent statement made by Ms. Berry. The Court of Criminal Appeals held that a foundation was not a prerequisite to the admission of the extrinsic evidence under Tenn. R. Evid., Rule 613(b). Pursuant to Tenn. R. Evid., Rule 613(b):

[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an oppor

tunity to e

xplain or deny the same and the opposite party is a fforded an opportunity to interrogate the witness thereon, or the interest s of justice otherwise r

equire.

The ori g i n of Rule 613 i s t he rul e i n Queen C arol i ne' s Case, 2 Br

. & B. 284, 129 Eng. Rep. 976 (1820)

. The rul e i n Q u een's case st ates:

I fi t be i n t ended t o bri ng t he cr edi t o f a wit ness i n t o quest i on by pr oof of anyt h i n g he may have sai d or dec l ared touchi ng t h e cause, t he wit ness i s f i rstasked, upon cro ss -e xa m ina tion , w he the r o r n ot h e h as sai d or dec l ared t hat which i s i n t ended t o be prov ed.7 Accordingl y , the r ule i n Qu een's case requi red a crosse xa m in e r to co n fro n t a w itn e ss w ith th e co n te n ts o f a p rio r inconsi stentstat e m ent befor e the i ntr oducti on of ext r i nsic evi dence.
The Tennessee pr act i ce t radi t i onal l y has adhered t o t h e pr oc ed ur es se t forth by the ru le in Q ue en 's c as e. Ha rdi n v. Stat e , 355 S.W.2d 105, 113 (Tenn. 1962); Stat e v. Frahm , 737 S.W.2d 799, 802 (Tenn. Cri m. App. 1987) ; Stat e v. McD ougl e , 681 S.W.2d 578, 583 (Tenn . Cri m. App. 1984) ; State v. Mackey , 638 S.W.2d 830, 835 (Tenn. Cri m. App. 1982)

. Thi s prac t i ce r equi red t hat a wit ness' at t e n t i on be drawn t o t he pl ace, pers ons pr esent , t i me of t he st a t ement, and t o t he subst ance of t h e st a t ement bef ore ex t r i nsi c evi dence of t he pri or i nconsi s t ent statem en t could b e u sed to imp ea ch the witnes s' credibili ty. Middl e Tenn. R. R. Co. v. McM i l l a n , 134 Tenn. 490 , 515-16 (1915)

. The foundat i onal requi rements were t o : (1) prov i d e t h e wit ness an oppor t u n i t yt o admit , deny, or ex p l a i n t he pri o r i nconsi s t ent st a t ement; (2) ref res h t he wit ness' mem ory ; and (3) al l ow the wi t n ess t o res pond i n t e l l i gent l y t o t h e i mpeachm ent at t e mpt. Id .; see M o o re v. B e ttis , 30 Tenn. 6 7 , 69 (1850) (hol ding i t a " m anif est i njust ice" to i m peach a w i t ness' ch ar ac ter w itho ut firs t ca lling atte ntio n to sta tem en t an d a l l owing an opport u n i t yt o expl a i n). Both Rul e 613 and t h e Advi sor y Comm i ssi on comm ent s t o Rule 613 omi t any ref erenc e t o t i ming or sequence. The Advi sor y Comm i ssi o n comm ent s , however, do af f i rmativel y not e t hat t h e i mplementat i on of Rule 613 " wil l not change dr ast i cal l y [ f o rmer]1 The sole apparent change to former practice made by Rule 613 concer ns writt en statements.

2 Upon an unequivocaladmission by the witness,the extrinsic evidence remains relevant for only two purposes: ( 1) to bolster the witness’ credibility i n admitting to having made the p re-trial statement; or (2) as substantive evidence that the witness’ prior st atement was true. 8 Tennessee pr ocedur e . " 1 Tenn. R. Evi d . 613, Advi sor y Com m issi on Co m m ents cit in g Moore , supr a . The purpose ofRule 613( b) i s t o al l ow int roduc t i on of oth er w ise ina dm iss ible ex trins ic e vid en ce for im pe ac hm en t. See State v. Reece , 637 S.W.2d 858, 861 (Tenn. 1982) ( s t a t i n g t h a t pri or i nconsi s t ent st a t ement may be consi dered onl y on t h e issue ofcredi bil i ty and not as substant i v e evidence). Extr insi c evi dence of a pri or i nconsi s t ent st a t ement r emains i nadmissi b l e when a wit ness unequi vocal l y admits t o havi ng made the pr i o r s t a t ement. See Stat e v. Grady , 619 S.W.2d 141, 143 (Tenn. Cri m. App. 1979) (not i ng generalrul e t hat ext r i nsi c evi dence of pri or i nconsist ent st atement "i s i nadm issi ble i f t he witness unequi vocal l y admits [ t o ] making [ t h e pri or s t a t e ment] " )

. The
u n e q u ivo ca l a d m iss io n o f a p rio r s ta te m e n t re n d e rs th e e xtr in sic evi dence bot h cumulat i ve and consi s t ent wit h a st a t ement
m a d e b y th e w itn e ss ' du rin g tria l. E xtr in sic e vid e n ce o f a p rio r consist ent st atement is general l yi nadm issi ble and not subj ect t o Rule 613( b). 2 See State v. Bo yd , 797 S.W.2d 589 ( Tenn. 1990); Stat e v. Braggs , 604 S.W.2d 883 ( Tenn. Cr i m. App. 1980). Accordi ngl y , t he admissi b i l i t yof t he ext r i nsi c evi dence i s cont i ngent upon whethert he wit ness admit s or deni es havi n g made the pr i or i nconsi s t ent st a t ement.9 W e f urt her bel i eve i t i l l ogi cal t o al l ow adm i ssi on of t h e
ex trins ic e vid en ce pr ior to the w itne ss ' ad m iss ion or de nia l. Con f ronti ng a w i t ness pri or t o the i ntr oducti on of ext r i nsic
e vid e n ce p ro vid e s f o r a n o rd e rly p re se n ta tio n o f e vid e n ce a n d test imony. Ti m e is saved i f t he witness unequivocal l yadm i ts to h a vin g m a d e th e p rio r s ta te m e n t. M o re o ve r, c o n fro n tin g a
w itne ss w ith a n in co ns iste nc y p rior to th e in tro du ctio n o f the
ex trins ic e vid en ce les se ns the risk tha t a ju ry w ill co ns ide r th e ev ide nc e a s s ub sta ntiv e e vid en ce . W e, th er efo re , ho ld th at
ex trins ic e vid en ce re m ain s in ad m iss ible un til the w itne ss eith er deni es or equi vocat es as t o havi ng made the pr i or i nconsi s t ent s t a t ement. See State v. Kendricks , 94 7 S. W

. 2 d 87 5 , 88 1 ( C t

. Cri m. App. 1996) (hol d i ng ext r i nsi c evi dence admissi b l e when wit ness deni es or does not rec a l l making pr i or i nconsi s t ent s t a t ement).

W e not e t hat Rule 613( b) oft he Federal Rules of Evi dence i s i dent i cal t o Rule 613( b) oft he Tennessee Rul es of Evi dence. The federa l advi sor y comments, however, st a t e t hat a f oundat i on may eit her be l a i d bef ore oraf t e r an off e r oft h e extr insi c evidence . While there exists a split of author ity as to the timing of the foundation, several cir cuits have clearly

expressed a preference for the traditional approach in light of the difficulties the change has caused. See U.S. v. Bonnett , 877 F.2d 1450, 1462 (10th Cir. 1989) (preferring traditional approa ch so trier of fact can "observe [witness] demeanor and the natur e of his testimony as he denies or explains his prior testimony.") ; Wammock v. Celotex , 793 F.2d 1518 (11th Cir. 1986) (holding "[r]ule 613(b) does not supplant the traditional method of confronting a witness with his inconsistent statement prior to its10 introduction."); U.S. v. McGuire , 744 F.2d 1197, 1204 (6th Cir.1984) (stating "[w]e do not approve of the government's not informing the def endant of this evidence, which w

e view as a questionable trial tactic."); U.S. v. Barrett, 539 F.2d 244, 254 (1st Cir. 1976) (noting traditional foundational good practice though not required).

W h i l e Tenn. R. Evi d . , Rule 613( b) s ubst ant i a l l y mainta i n s f o rmer Tenness ee proc edure, t he rul e al so ameli orat es t h e h a rs h e ffe ct o f s tric tly a p p lyin g th e ru le in Q u e e n 's c a se . R u le 613(b) permi t s t he t r i a l cour t t o departf rom th e f oundat i onal requi rements when "t he i n t eres t s of j ust i ce ot herwi se r equi re. " T en n. R . E vid ., R ule 61 3( b) . T his cla us e p ro vid es flex ibility to deal wit h t he ext raord i narycase i n whic h t he st r i c t appl i cat i on of t h e rul e i n Queen's c ase woul d l ead t o i n j ust i ce. See Saltzbur g , Federal Rules ofEvi dence Manual , 6 t h Ed., Vol. 2 (1994) (not i ng t hat t he st r i c t appl i cat i on of t he comm on l aw rul e re su lted in p ro hib iting ex trins ic e vid en ce w he n in co ns iste nt st a te m e n ts w e re d isc o ve re d a fte r a w itn e ss te st ifie d a n d in premature l y al ert i ng col l usi ve wi t n esses t o evi dence avai l abl e f o r i mpeachm ent ) .

T he ca se no w be for e u s is no t the ex tra or din ar y c as e. The st a t e was aware ofMs. Berry ' s pr i or i nconsi s t ent st a t ement and had ample opport u n i t yt o l ay a f oundat i on bef ore i t a t t e mpted t o admit t he ext r i nsi c evi dence. The state, however, nev er asked Ms. Berry w

hether she had made a prior statement to the defendant or to anyone else that she did not k now the defendant's whereabouts at the time of the robbery. Accordingly, Ms. Berry was not provided an oppor tunity to admit or11 deny her p re-trial s tatemen t to the de fendan t. Offic er Covingto n's testi mony, therefore, was erroneously admitted.

A violation of an evidentiary rule may not mandate r eversal if the error "was more probably than not harmless." United States v. Barret t , 703 F.2d 1076, 1081-82 (9th Cir. 1983). See also Wilson v. State , 724 S.W.2d 766, 769 (Tenn. Crim. App. 1986) (noting that "harmless error analy sis applies to virtually all trial errors except the denial of counsel and the partiality of the adjudicator."). Pursuant to Tenn. R. Crim P., Rule 52(a), "[n]o judgment of conviction shall be reversed on appeal exc ept for errors which affirmatively appear to hav e affected the result of the trial on it s merits."
Both victims positively identified the defendant and his voice. Ms. Hollingsworth spent approximately thir ty minutes assisting

the defendant prior to being stabbed by him. Ms. Blakely witness ed Ms. Hollingsw

orth assisting the defendant and stated that she got a go od look at the defendant. The defendant lived in close prox

imity to the store and attempt ed to evade the law w

hen he found out that there was a warrant for his arrest in connection with the robber y. See State v. Williams , 638 S.W.2d 417, 421 (Tenn. Crim. App. 1982) (holding jury may draw inference of guilt from fact that defendant attempted t o flee or evade arrest). The defendant's o wn alibi witness

exhibited some confusion and testified that she and the defenda nt injected cocaine and shoplifted on a daily basis. We, therefore, conclude that the evidence against the defendant was overwhelming and find that the erroneous admission of Of ficer Covington's testimony did not "affirmatively appear to have affe cted" the outcome of the trial.12 The Court of Criminal Appeals judgment is affirmed as modified. Costs of this appeal are taxed to the appellant, Henry Lee Mar tin, for which execution may issue if neces sary.

Janice M. Holder, Justice

CONCURRING: Anderson, C.J. Drowota, Reid and Birch, JJ.