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Dike v. State11/30/1999
ld them happened. As we discussed earlier in this opinion, the testimony was admissible. That Dike=s counsel did not make a futile objection to admissible testimony does not cause us to doubt his performance or question the soundness of the verdict.
Affirmed.
LEHMAN, Chief Justice, Dissenting.
I cannot agree with the majority that an audio tape introduced into evidence by the prosecutor that included Deputy Hardin=s objectionable statement of Ahe put a gun to your head. That=s aggravated battery@ was not Adirectly solicited by the prosecution in this case.@ Maj. op. at 11. In addition, I would hold the hearsay statements were improperly admitted under W.R.E. 801(d)(1)(B) as prior consistent statements.
Solicited Statements
While Hardin=s statements were not directly solicited from the prosecutor in the traditional sense of witness examination, the record reveals the prosecutor wished to play excerpts from the tape but did not excise the potion of the tape that included Officer Hardin=s statements. It is not as if a witness volunteered the testimony to the prosecutor=s surprise. Instead, the record establishes that introduction of these statements was the result of a deliberate choice by the prosecutor. I am led to the inescapable Conclusion that Deputy Hardin=s statements, played to the jury by audio tape, were directly solicited by the prosecutor.
The only question, therefore, is whether Officer Hardin=s statements amount to an opinion of Dike=s guilt. Rather than comparing the objectionable statement, Ahe [Dike] placed a gun to your head. That=s aggravated battery,@ to other casesCcompare Whiteplume v. State, 841 P.2d 1332, 1337-39 (Wyo. 1992) (In response to prosecutor=s question of AWhat did you do at that point?@ deputy sheriff testified that AI listened to her [complaining witness=] story and made a determination that she had been raped.@); Newport v. State, 983 P.2d 1213, 1215 (Wyo. 1999) (In response to prosecutor=s question of Awhat was your reaction to the victim at the time,@ prosecution witness answered A e believed her.@); Brown v. State, 953 P.2d 1170, 1181 (Wyo. 1998) (In response to prosecutor=s question whether witness had anything against the accused and his co-conspirator, witness answered AJust the fact that they killed somebody.@)Cthe majority states:
We believe that the jurors understood that the decision regarding Dike=s guilt or innocence was theirs to make after hearing all the evidence and that they recognized Deputy Hardin made the statements to calm and reassure the victim before he could have formed an opinion because he made them before he knew all the facts and circumstances surrounding the incident.
Maj. op. at 12. That belief may or may not be accurate because of the Aimpossibility of assessing whether the jury relied upon [those statements] in reaching its verdict.@ Stephens v. State, 774 P.2d 60, 68 (Wyo. 1989); Bennett v. State, 794 P.2d 879, 882 (Wyo. 1990).
Hearsay
Next, I do not agree with the majority=s interpretation of W.R.E. 801(d)(1)(B) concerning admission of prior consistent hearsay statements. I would revive the analysis approved by this court in Chambers v. State, 726 P.2d 1269 (Wyo. 1986), the same analysis accepted by the United States Supreme Court in Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), and require that the motive to fabricate must come after the hearsay statements in order for those statements to be admissible as prior consistent statements under W.R.E. 801(d)(1)(B). Therefore, I would hold that admission of hearsay by eight prosecution witnesses, repeating the victim=s story, was improper an
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