One means of attacking the credibility of a witness is by showing inconsistency between her testimony at trial and what she said on previous occasions. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). Appellant's first assignment of error presents us with two issues: (1) Whether, as a matter of law, prior statements may be inconsistent with a present denial of recollection of having made them; and (2) Whether the recitation by the prosecutor of such statements in the presence of the jury denied the appellant a fair trial.
To the extent that Brehmer and Marco can be read to hold otherwise, they are disapproved.State v. Price, 202 Neb. 308, 322, 275 N.W.2d 82, 90 (1979). The language of ยง 27โ607 is similar to and patterned after rule 607 of the Federal Rules of Evidence.
To the extent that Brehmer and Marco can be read to hold otherwise, they are disapproved. State v. Price, 202 Neb. 308, 322, 275 N.W.2d 82, 90 (1979).The language of ยง 27โ607 is similar to and patterned after rule 607 of the Federal Rules of Evidence.
In resolving the second assignment of error, the court began by focusing on Neb. Evid. R. 613(2), Neb. Rev. Stat. ยง 27-613(2) (Reissue 1995), which provides in part that "[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 him thereon, or the interests of justice otherwise require." The court then cited State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979), and State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996), for the proposition that the foundational requirements of ยง 27-613 can be met by affording the impeached party an opportunity to explain or deny either before or after the introduction of impeaching evidence. Nevertheless, the Court of Appeals concluded that because Al-Zubaidy knew that Seana was not a resident of Nebraska at the time of her trial testimony, he was obligated to take some action to secure her continued presence for the purpose of explaining or denying the alleged statement to Ways, and because he had not done so, the extrinsic evidence of the statement was properly excluded.
Our conclusion is supported by the substantial, even overwhelming, evidence in addition to Black's inadmissible prior statement. See, State v. Daniels, 222 Neb. 850, 388 N.W.2d 446 (1986) (in addition to erroneously admitted evidence, other competent evidence supported a conviction); State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979) (other admissible evidence was substantial; error in admitting evidence was inconsequential); State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975) (admissible evidence was very strong and practically conclusive). On arrival at the Arndt house, the officers saw Watkins near the open window, which had been shut by the Arndts.
Under Rule 607 a party may call a witness, elicit the witness's testimony, and then freely attack the witness's credibility if the testimony proves to be adverse. See M.R.Evid. 607 Advisers' Note, reprinted in R. Field P. Murray, supra, at 136; State v. Price, 202 Neb. 308, 275 N.W.2d 82, 90 (1979) (the identical Nebraska Rule 607 represents a repudiation "of the ancient and universally criticized rule that a party `vouches' for the credibility of his own witnesses and may not impeach them"). Since neither party vouches for any witness's credibility, the failure of a party to call a witness cannot be treated as an evidentiary fact that permits any inference as to the content of the testimony of that witness.
A party no longer "vouches" for the credibility of its witness. Neb. Rev. Stat. ยง 27-607 (Reissue 1979); State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). Further, a conviction may be supported by the uncorroborated testimony of an accomplice.
Depending on counsel's strategy, the inconsistent statement can be introduced prior to giving the declarant an opportunity or chance to explain. See State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). However, if counsel chooses to question the declarant concerning the inconsistent statement before introducing the extrinsic evidence of the inconsistent statement, and if the declarant admits making the inconsistent statement, counsel may not introduce extrinsic evidence of the inconsistent statement.
Brief for Appellant at 40. We held in State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979), that a court, even if requested, is not required to give NJI 14.52A. The appellant was given the benefit of submitting to the jury questions of law concerning the admissibility of a confession under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Insofar as any other errors, except the sentence, are concerned, no motion for new trial was filed in this case; therefore, the only issue before us is whether the sentence was excessive. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). The presentence report indicates that the trial court did not abuse its discretion when imposing imprisonment in lieu of probation.