State v. Hunt, 324 N.C. 343,  378 S.E.2d 754 (1989)

Improper to impeach a witness with alleged prior inconsistent statements merely to get the statements into evidence.

The same principles govern the admissibility of Marie Crawford's prior statements for purposes of impeachment in this case.   Once the trial court determined that Marie was a hostile or unwilling witness, it properly permitted the state to subject her to cross_examination.   However, the trial court erred in permitting Officer Daulton to testify as to the substance of the prior statements denied by Marie.   Officer Daulton could properly have been *349 called to contradict the fact, denied by Marie, that she had made the statement to him on the specified date.   But, as this Court made clear in Williams, "it was improper to impeach [her concerning what she had or had not told Officer Daulton] by offering the testimony of [Officer Daulton]." 322 N.C. at 456, 368 S.E.2d at 626.


 The trial court applied Rule 403 to balance the impeachment value of the statements against their tendency to prejudice defendant unfairly or to confuse the jury.   Although unsworn prior statements are not hearsay when not offered for their truth, the difficulty with which a jury distinguishes between impeachment and substantive evidence and the danger of confusion that results has been widely recognized.   E.g.,United States v. Webster, 734 F.2d 1191 (7th Cir.1984);  United States v. Morlang, 531 F.2d 183 (4th Cir.1975). See also 3 D. Louisell & C. Mueller, Federal Evidence § 299 (1979).   For this reason, the "overwhelming weight of [federal] authority" with regard to the use of the identical Fed.R.Evid. 607 has long been "that impeachment by prior inconsistent statement may not be permitted where employed as amere subterfuge to get before the jury evidence not otherwise admissible." United States v. Morlang, 531 F.2d 183, 190.   See also United States v. Hogan, 763 F.2d 697, withdrawn in part on other grounds,771 F.2d 82 (5th Cir.1985) (a party may not introduce prior inconsistent statements "under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible."  763 F.2d at 702 (quoting **758 United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981)cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982)).   As Judge Posner noted inWebster, it is taking advantage of the jury's likely confusion regarding the limited purpose of impeachment evidence that has moved federal appellate courts to scrutinize the use of hearsay evidence for the impeachment of a party's own witness.

[I]t would be an abuse of [Rule 607], in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss *350 the subtle distinction between impeachment and substantive evidence__or, if it didn't miss it, would ignore it.

  United States v. Webster, 734 F.2d 1191, 1192, quoted in United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989).

 It is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury.   Circumstances indicating good faith and the absence of subterfuge in these exceptional cases have included the facts that the witness's testimony was extensive and vital to the government's case, United States v. DeLillo, 620 F.2d 939 (2d Cir.)cert. denied, 449 U.S. 835, 101 S.Ct. 107, 66 L.Ed.2d 41 (1980);  that the party calling the witness was genuinely surprised by his reversal, United States v. Webster, 734 F.2d 1191;  or that the trial court followed the introduction of the statement with an effective limiting instruction, DeLillo, 620 F.2d 939;  United States v. Long Soldier, 562 F.2d 601 (8th Cir.1977).

It is improper for the State to attempt to impeach its own witness by alleged prior inconsistent statements where in reality this is a mere subterfuge to get the prior statements into evidence.

Regarding the issue of impeachment, the State argues that Yancey's testimony was inconsistent with some of the statements she made to the police at the time of the shooting, and therefore the recorded statement was admissible for impeachment purposes.

North Carolina Rule of Evidence 607 allows a party to impeach its own witness, and Rule 611 allows the use of leading questions on direct examination of a hostile witness.   N.C. Gen.Stat. § 8C_1, Rules 607611 (1994). Furthermore, the State may attempt to impeach a hostile witness by asking him whether he previously made certain prior inconsistent statements.   N.C. Gen.Stat. § 8C_1, Rule 607 (1994)State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757 (1989).   However, impeachment by a prior inconsistent statement may not be permitted where it is used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible.  Hunt, 324 N.C. at 349, 378 S.E.2d at 757 (citations omitted) (State improperly attempted to impeach its own witness by calling the detective to whom the witness had made a prior inconsistent statement and having him read the entire statement into the record).

  *161 State v. Price, 118 N.C.App. 212, 216, 454 S.E.2d 820, 822_23, disc. review denied, 341 N.C. 423, 461 S.E.2d 766 (1995).  Demery is distinguishable on its facts from the case before us.   In Demery, we reasoned that "[i]t is permissible to use a prior statement to impeach a witness where there is proof that on another occasion he has made statements inconsistent with his testimony.   At trial, Brooks acknowledged having made the prior statement."  Demery, 113 N.C.App. at 67, 437 S.E.2d at 710 (emphasis added) (citations omitted).   Here, although Yancey admitted to signing the recorded statement, she denied making some of the prior statements.   Yancey specifically denied that she heard the defendant state that, "if Big Daddy came down there that he was going to shoot him."   There is no competent evidence of record to suggest that Yancey made the statements as summarized in the police investigator's notes.

See also: State v. Price, 454 S.E. 2d 820; State v. Thomas, 302 S.E. 2d 816.