LSA-C.E. art. 607(D). Admission of the evidence requires a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. LSA-C.E. art. 607(D); State v. Cousin, 96-2673, pp. 12-13 (La.4/14/98), 710 So.2d 1065, 1071. When a non-party witness's credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt.
Instead, a unanimous Court reversed Mr. Cousin's conviction and death sentence based on the erroneous admission of a witness' testimony as impeachment evidence and respondent's improper use of that evidence in closing argument. State v. Cousin, 96-2973 p. 16 (La. 4/14/98), 710 So.2d 1065, 1073. Nevertheless, the Court commented in footnotes that Ms. Babin's second statement was "obviously" exculpatory, material to the issue of guilt, and "clearly" should have been produced to the defense under Brady and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
Again, as noted earlier, the state also recalled Ms. Lewis, who testified that after they returned from New Orleans East that night a woman sat next to her and told her that "the guy that did the shooting was her son-in-law" and that the woman was "like in a catch-twenty-two-situation." Mr. Collins contends that the manner in which the state presented this evidence was strikingly similar to the manner in which the state presented its case in State v. Cousin, 96-2973 (La. 4/14/98), 710 So.2d 1065. In Cousin, supra, the state attempted to elicit testimony from the defendant's friend that the defendant had admitted his involvement in a robbery and murder.
La.C.E. art. 607(D)(2) ; former La.R.S. 15:493 ; State v. Gabriel, 450 So.2d 611, 616 (La.1984) ; State v. Mosely, 360 So.2d 844, 845 (La.1978) ; State v. Rudolph, 332 So.2d 806, 813 (La.1976). Provided that the witness has had a fair opportunity "to admit the fact and has failed distinctly to do so," La.C.E. art. 613, extrinsic evidence of the statement is admissible, not to prove the truth of the matter asserted, i.e., not for its hearsay content, but to establish the fact of contradiction as a means of impeaching witness's general credibility.State v. Cousin, 96-2973, p. 8 (La.4/14/98), 710 So.2d 1065, 1069. In this regard, Louisiana has followed the minority rule that such prior inconsistent statements "simply do not constitute substantive evidence."
The court noted, however, that the State could introduce the prior inconsistent statement for impeachment purposes under La.C.E. art. 607. In State v. Cousin, 96-2973 (La. 4/14/98), 710 So.2d 1065, the Court addressed the use of an inconsistent statement made out-of-court for both impeachment and substantive purposes. A witness had told police officers that the defendant had confessed to him that he had killed a man in the French Quarter during an unsuccessful armed robbery.
The long-standing jurisprudential rule in Louisiana recognizes "when a witness other then the defendant is impeached by the admission of a prior, inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant's guilt."Stale v. Cousin, 1996-2973 (La. 4/14/98); 710 So.2d 1065, 1069.Cousin further instructed that "a statement by a witness that merely denies making a prior statement which incriminated the accused does not, by the substance of the in-court testimony, damage the prosecutor's case ... The denial itself is non-evidence, and it is unnecessary to attack the credibility of non-evidence."Id. 710 So.2d at 1071.The record shows Gonzales, when called as a state witness, never denied making a prior statement to the authorities, either in his direct or cross-examination. Vol. 4, pp. 804, 818.
PER CURIAM:[fn1] [fn1] Retired Judge Robert L. Lobrano, assigned as justice pro tempore, participating in the decision. Louisiana has long sanctioned the use of prior inconsistent statements to impeach the general credibility of a witness, subject to the rule that such statements are admissible only for their impeachment value and not as substantive evidence, see State v. Cousin, 96-2973, p. 8 (La. 4/14/98), 710 So.2d 1065, 1069, and subject also to the authority of a trial judge to exclude such evidence when its probative value "on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice." La.C.E. art. 607(D)(2); Cousin, 96-2973 at 11, 710 So.2d at 1071 ("The right to use the prior statement depends upon the probative value of the statement as to the credibility of the witness' in-court testimony, as measure against the prejudicial impact that potentially may result from the jury's improper use of the evidence.") (citation omitted).
Thereafter, the defendant contends, the State used the witnesses' prior statements to impeach their testimony, then impermissibly argued the substance of the prior statements in its closing and rebuttal arguments in violation of Louisiana's longstanding rule that prior inconsistent statements made by a witness are not admissible for their substantive, assertive content. See State v. Cousin, 96-2973, p. 8 (La. 4/14/98), 710 So.2d 1065, 1069 The State called as its witness Trenice Dordon, the defendant's girlfriend, to establish that several days after the murders, and prompted by a news report about the crime, the defendant confided to her on two occasions that "that was cold" and "we did that."
Admission of the evidence, which bears solely on the issue of credibility, turns on a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. La.C.Cr.P. art. 607(D); State v. Owunta, 99-1569, p. 1 (La. 5/26/00), 761 So.2d 528, 529; State v. Cousin, 96-2673, pp. 12-13 (La. 4/14/98), 710 So.2d 1065, 1071. When a non-party witness's credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt.
[21] Our Supreme Court has noted that a party can impeach its own witness. See State v. Cousin, 96-2978, pp. 10-11, 710 So.2d 1065, 1070-71. In performing the weighing process within La. C.E. art. 607(D)(2), a court must consider and weigh the relevancy of the prior statement with the credibility of the in-court statement and the motivation for impeachment.