FILED

March 9, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

Filed: March 9, 1998

STATE OF TENNESSEE, ) DAVIDSON COUNTY CRIMINAL

) No. 93-B-879

APPELLEE, )

)

v. ) Hon. Seth Norman, 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 Reporter

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 twenty-two years imprisonment and

fined five thousand dollars. The Court of Criminal Appeals 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 to the introduction of

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

extrinsic evidence 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 having 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 required further assistance. She went back to the front of the

store. A short time later, the defendant again requested her assistance. She

assisted him for an additional five 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. Hollingsworth had a short conversation with another store employee,

Ms. Blakely, while in the stockroom. Ms. Hollingsworth then realized that the

defendant had followed her part of the way into the stockroom. She turned to
3

the defendant, informed him that the requested size was not available and asked

whether there was anything 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 corner of the store. As she was taking an item from the

rack, the defendant stabbed her and threw 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. Hollingsworth told the defendant how to open the register. The defendant

then led Ms. Hollingsworth back into the stockroom where he asked Ms. Blakely

to confirm the procedure for opening the cash register without setting off an

alarm.

The defendant and Ms. Hollingsworth proceeded back to the cash

register. She opened the register and placed the register's contents into a bag. 

The defendant led Ms. Hollingsworth 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. Hollingsworth 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 transported to the hospital where she spent thirty-six hours in intensive

care and an additional three days in a regular hospital room prior to being
4

released. She sustained a collapsed lung as a result of the defendant having

stabbed her.

Ms. Hollingsworth provided the police with 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 defendant in the store

on February 24, 1993, and that Ms. Hollingsworth had assisted the defendant. 

She further stated that she got a good look at the defendant while Ms.

Hollingsworth was assisting him. Ms. Blakely was positive that the defendant

was the perpetrator.

Lennie Covington, the investigating officer, testified. He stated that an

apartment where the defendant had resided in February, 1993, was located on a

hill that overlooked the One Price Clothing Store. He identified photographs of a

path which lead from the apartment complex where the defendant had resided to

the One Price Clothing Store.

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 cocaine on a daily basis and that she and the defendant

supported their habit by stealing. Their typical day consisted of "get[ting] high"

and shoplifting to "get some more [dope]." Ms. Berry testified that on the date of

the robbery, she had worked until three o'clock in the afternoon. She and the

defendant "did some cocaine" that afternoon and later "went out boosting,
5

shoplifting" so that they could purchase more cocaine. On cross examination,

Ms. Berry appeared to have some initial confusion as to whether 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 was with her at their apartment, injecting cocaine during the time

of the robbery. 

During the state’s cross examination, Ms. Berry admitted talking to officer

Covington, the arresting officer, at the time of the arrest. She agreed that she

did not tell officer Covington that the defendant could not have committed the

robbery because he had been with her at the time of the arrest. The following

colloquy occurred between the state and 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 Detective Covington that?

A. No, Sir. I didn't tell nobody nothing. I haven't talked to

anybody.

Q. You talked to Detective Covington that day, didn't you?

A. That day he picked us up from Murfreesboro? We both talked

to him, yes. . . . I probably did. I was thinking the day that I worked

was on a Tuesday. And it was not on a Tuesday. It was on a

Wednesday. At the beginning. . . . I mistaked [sic] my days.

 . . .

Q. Okay. My question to you was, did you tell Officer Covington

when you were arrested 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 testify that the defendant

initiated a conversation while the defendant and Ms. Berry were in the back seat

of Covington's car. The defendant asked on what date the robbery 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 responded, "I don't know where you

were, I was in the motel."

DISCUSSION

The issue with which we are confronted is whether the officer's testimony

was properly admitted as extrinsic evidence 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 opportunity to explain or deny the same

and the opposite party is afforded an opportunity to

interrogate the witness thereon, or the interests of

justice otherwise require.

The orig in of Rule 613 is the rule in Queen C aroline's

Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820). The rule in

Q u een's case states:

I f it be in tended to bring the credit o f a

witness in to question by proof of anyth in g

he may have said or declared touching th e

cause, the witness is first asked, upon

cro ss -e xa m ina tion , w he the r o r n ot h e h as

said or declared that which is in tended to

be proved.
7

Accordingly , the rule in Qu een's case required 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

inconsistent state m ent before the introduction of extr insic

evidence.

The Tennessee practice tradit ionally has adhered to th e

pr oc ed ur es se t forth by the ru le in Q ue en 's c as e. Ha rdin v.

State , 355 S.W.2d 105, 113 (Tenn. 1962); State v. Frahm , 737

S.W.2d 799, 802 (Tenn. Crim. App. 1987); State v. McD ougle ,

681 S.W.2d 578, 583 (Tenn . Crim. App. 1984); State v.

Mackey , 638 S.W.2d 830, 835 (Tenn. Crim. App. 1982). This

pract ice required that a witness' att en tion be drawn to the place,

persons present, t ime of the sta tement, and to the substance of

t he sta tement before ext rinsic evidence of the prior inconsis tent

statem en t could b e u sed to imp ea ch the witnes s' credibility. 

Middle Tenn. R.R. Co. v. McM illa n , 134 Tenn. 490, 515-16

(1915). The foundational requirements were to : (1) provid e

t he witness an opport un it y to admit, deny, or exp la in the prio r

inconsis tent sta tement; (2) refresh the witness' mem ory; and

(3) allow the wit ness to respond in te lligently to th e

impeachm ent att empt. Id .; see M o o re v. B e ttis , 30 Tenn. 67 ,

69 (1850) (holding it a "m anifest injustice" to im peach a w i tness'

ch ar ac ter w itho ut firs t ca lling atte ntio n to sta tem en t an d

a llowing an opport un it y to expla in). Both Rule 613 and th e

Advisory Comm ission comm ents to Rule 613 omit any

reference to timing or sequence. The Advisory Comm issio n

comm ents , however, do aff irmatively note that th e

implementation of Rule 613 "will not change drastically [f ormer]
1

The sole apparent change to former practice made by Rule 613 concerns written

statements.

2Upon an unequivocal admission by the witness, the extrinsic evidence remains relevant

for only two purposes: (1) to bolster the witness’ credibility in admitting to having made the pre-trial

statement; or (2) as substantive evidence that the witness’ prior statement was true.

8

Tennessee procedure ."

1

 Tenn. R. Evid . 613, Advisory

Com m ission Co m m ents cit in g Moore , supra .

The purpose of Rule 613(b) is to allow introduct ion 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 ta tin g

t ha t prior inconsis tent sta tement may be considered only on th e

issue of credibili ty and not as substanti ve evidence). Extrinsic

evidence of a prior inconsis tent sta tement remains inadmissib le

when a witness unequivocally admits to having made the prio r

s ta tement. See State v. Grady, 619 S.W.2d 141, 143 (Tenn.

Crim. App. 1979) (noting general rule that extr insic evidence of

prior inconsistent statement "is inadm issible if the witness

unequivocally admits [t o] making [t he prior st at ement]" ). 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 xtrin sic

evidence both cumulative and consis tent with a sta tement

m a d e b y th e w itn e ss ' du rin g tria l. E xtrin sic e vid e n ce o f a p rio r

consistent statement is generall y inadm issible and not subject

t o Rule 613(b).2

 See State v. Bo yd , 797 S.W.2d 589 (Tenn.

1990); State v. Braggs, 604 S.W.2d 883 (Tenn. Crim. App.

1980). Accordingly , the admissib ilit y of the extr insic evidence is

contingent upon whether the witness admits or denies havin g

made the prior inconsis tent sta tement.
9

W e further believe it illogical to allow adm ission of th e

ex trins ic e vid en ce prior to the w itne ss ' ad m iss ion or de nia l. 

Con f ronting a w i tness prior to the introduction of extr insic

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

testimony. Tim e is saved if the witness unequivocall y adm 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

denies or equivocates as to having made the prior inconsis tent

s ta tement. See State v. Kendricks, 947 S.W .2 d 875 , 881 (C t.

Crim. App. 1996) (hold ing extr insic evidence admissib le when

witness denies or does not reca ll making prior inconsis tent

s ta tement).

W e note that Rule 613(b) of the Federal Rules of

Evidence is identical to Rule 613(b) of the Tennessee Rules of

Evidence. The federa l advisory comments, however, sta te that

a foundation may either be la id before or aft er an off er of th e

extrinsic evidence. While there exists a split of authority as to the timing of

the foundation, several circuits 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 approach

so trier of fact can "observe [witness] demeanor and the nature 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 its
10

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 defendant of this

evidence, which we 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 ile Tenn. R. Evid ., Rule 613(b) substantia lly mainta in s

f ormer Tennessee procedure, the rule also ameliorates th 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) permit s the tr ia l court t o depart from the foundational

requirements when "the in terest s of justice otherwise require." 

T en n. R . E vid ., R ule 61 3( b). T his cla us e p ro vid es flex ibility to

deal with the extraord inary case in which the str ic t application of

t he rule in Queen's case would lead to in justice. See Saltzburg ,

Federal Rules of Evidence Manual, 6 th Ed., Vol. 2 (1994)

(noting that the str ic t application of the comm on law rule

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 ly alerting collusive wit nesses to evidence available

f or impeachm 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 sta te was aware of Ms. Berry 's prior inconsis tent sta tement

and had ample opport un it y to lay a foundation before it

a tt empted to admit the extr insic evidence. The state, however, never

asked Ms. Berry whether she had made a prior statement to the defendant or to

anyone else that she did not know the defendant's whereabouts at the time of

the robbery. Accordingly, Ms. Berry was not provided an opportunity to admit or
11

deny her pre-trial statement to the defendant. Officer Covington's testimony,

therefore, was erroneously admitted.

A violation of an evidentiary rule may not mandate reversal if the error

"was more probably than not harmless." United States v. Barrett, 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 analysis 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 except for errors which affirmatively appear to have affected

the result of the trial on its merits."

Both victims positively identified the defendant and his voice. Ms.

Hollingsworth spent approximately thirty minutes assisting the defendant prior to

being stabbed by him. Ms. Blakely witnessed Ms. Hollingsworth assisting the

defendant and stated that she got a good look at the defendant. The defendant

lived in close proximity to the store and attempted to evade the law when he

found out that there was a warrant for his arrest in connection with the robbery. 

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 to flee or

evade arrest). The defendant's own alibi witness exhibited some confusion and

testified that she and the defendant 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 Officer Covington's

testimony did not "affirmatively appear to have affected" 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 Martin, for which execution

may issue if necessary.

Janice M. Holder, Justice

CONCURRING:

Anderson, C.J.

Drowota, Reid and Birch, JJ.