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Reluctant, forgetful witness’s statements to police properly admitted as prior inconsistent statements

State v. Connie Mae Apfel, 2016AP188-CR, District 3, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court properly exercised its discretion in admitting extrinsic evidence of the complaining witness’s statements to the police as prior inconsistent statements under §§ 908.01(4)(a)1. and 906.13(2)(a) after the witness expressed reluctance to testify and said he didn’t remember what he told police.

John, the complaining witness in this domestic disorderly and battery case, was reluctant to testify against Apfel, who was his wife. On direct he testified he did not remember even talking to the police, much less what he told them, and specifically denied telling them he’d been injured. So the State called the officers who talked to John after responding to his call to the police, and they testified about what John told them, including that Apfel struck and injured him. (¶¶2-7).

When a witness denies recollection of a prior statement and the circuit court has reason to doubt the good faith of that denial, it may, in its discretion, declare the witness’s testimony inconsistent and permit the prior statement’s admission into evidence. State v. Lenarchick, 74 Wis. 2d 425, 436, 247 N.W.2d 80 (1976). Apfel doesn’t argue John’s lack of memory was genuine (¶14), but instead claims the State didn’t establish a sufficient foundation for the circuit court to exercise its discretion and admit extrinsic evidence of John’s statements to the police because the State didn’t specifically ask John whether Apfel had hit him, whether he consented to being hit, or whether he experienced pain when being hit. The court of appeals says that kind of specific questioning wasn’t necessary:

¶12     …. Neither the rules of evidence nor Lenarchick require the State to establish the foundation for the officers’ testimony in the manner Apfel contends given John’s complete, bad faith denial of remembering anything he had told the police. Lenarchick held that the admissibility of prior statements by a witness who claimed memory loss of those statements at trial rested within the discretion of the circuit court. Lenarchick, 74 Wis. 2d at 436. In particular, our supreme court noted that while inconsistency is not automatically presumed upon a witness’s lack of memory, the circumstances surrounding the asserted lack of memory may function as an effective disavowal of a prior statement. Id. at 435. It concluded that because the circuit court “with reason[] doubted the good faith of [the witness’s] protestations of lack of memory,” it could declare the witness’s testimony inconsistent to “lay the ground for the admission of the police statement” into evidence, not just a segment of what the witness had denied saying. Id. at 436.

¶13     Lenarchick does not require a circuit court to consider the purposes for which testimony is offered or to hear each specific question that would have been asked of the witness if he or she claimed to have remembered at least some of the “forgotten” conversation. See generally id. Instead, the fact that the entire conversation itself was not remembered is the basis upon which extrinsic evidence may be admitted regarding what the witness said during that earlier conversation. Id. at 434, 436. The dispositive question for purposes of admission is simply whether, in the circuit court’s discretion, the testimony regarding memory loss is not made in good faith and, in that sense, is inconsistent with the now “forgotten” prior statements. Id.

¶14     Under this standard, the circuit court had an adequate factual basis upon which to exercise its discretion and declare the statements John made to the police to be inconsistent with his statements at trial. ….

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