ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Charles E. Stewart, Jr.            Karen M. Freeman-Wilson
Crown Point, Indiana            Attorney General of Indiana

                            James B. Martin
                            Deputy Attorney General
                            Indianapolis, Indiana

SHARNEE ROBERT APPLETON,            )
                                     )
    Appellant (Defendant Below       ),    )
                                     )
        v.                           )  No. 45S00-9901-CR-00062
                                     )
STATE OF INDIANA,                    )
                                     )
    Appellee (Plaintiff Below        ).    )

Eventually, we concluded that the additional requirements and limitations of the Patterson rule made it unworkable. We therefore overruled it. See Modesitt v. State, 578 N.E.2d 649, 652-54 (Ind. 1991).

    In Modesitt, we adhered to the Federal Rules of Evidence and limited the admission of a prior statement as substantive evidence to certain situations. Id. at 654; see now Ind. Evidence Rule 801(d). By permitting only those prior inconsistent statements made under oath to be considered substantive evidence, we hoped to impress upon a witness the “solemnity and importance” of his or her statements and remind the witness that being dishonest may result in a perjury indictment. Modesitt, 578 N.E.2d at 653. We also attempted to restrain the practice of calling numerous persons to testify about the same statement given by a particular witness, thereby preventing a “drumbeat repetition” of the witness’s original story. Id.

    The goals of Modesitt and Rule 801(d) demonstrate why the trial court erred in permitting the State to directly examine the witnesses in this manner. Trials should principally proceed on the basis of testimony given in court, not statements or affidavits obtained before trial. See footnote

    First, it is important to note that John Williams participated in the trial as a prosecution witness. During argument on Appleton’s motion in limine, the defense questioned the State’s motive for calling Williams. The State indicated that Williams would be put on the stand because he “talks about and substantiates things” to which the other witnesses testified. (R. at 519.) The prosecution also acknowledged its intention to impeach Williams. ( Id.) While it was not barred from doing so just because Williams appeared as a State witness, Ind. Evidence Rule 607, a party is forbidden from placing a witness on the stand when the party’s sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. See United States v. Ince, 21 F.3d 576, 580-81 (4th Cir. 1994); United States v. Kane, 944 F.2d 1406, 1411-12 (7th Cir. 1991); United States v. Gossett, 877 F.2d 901, 907 (11th Cir. 1989), cert. denied, 493 U.S. 1082 (1990); Impson v. State, 721 N.E.2d 1275, 1281 (Ind. Ct. App. 2000).

Because Williams owned the home where the events began and observed the three assailants attack the victims, it is reasonable that the State wanted him to testify for purposes other than impeachment. Although one must wonder whether the State’s goals were truly effectuated by Williams’ testimony, we cannot definitively declare that the State placed Williams on the stand for the sole purpose of impeaching him.

    Nevertheless, the State’s method of impeaching Williams left much to be desired. Under our rules, a party may impeach a witness by extrinsic evidence of a prior inconsistent statement. Ind. Evidence Rule 613(b). However, “once a witness has admitted an inconsistent prior statement she has impeached herself and further evidence is unnecessary for impeachment purposes.” Pruitt v. State, 622 N.E.2d 469, 473 (Ind. 1993).

    In Pruitt, one of the witnesses had given an audiotaped statement to Indiana State Police detectives. At trial, however, the witness recanted her prior statement and insisted that she lied when talking to the police. When the State initially asked the court for permission to play the tape for the jury, the trial court refused because the witness had already recanted her prior statement. Id. at 472-73. Nonetheless, as her examination progressed, the witness claimed that she had been submitted to police duress; therefore, the court ultimately allowed the jury to hear her pretrial taped statement for the limited purpose of demonstrating that she had not been subjected to duress. Id. at 473. Although we determined that the court justifiably permitted the State to present evidence that the witness was not subjected to police duress, we also held that the court properly prohibited the State’s initial request to present the taped statement for impeachment purposes because the witness had already admitted an inconsistent statement. Id.

    The attempted impeachment of Williams in this case bears resemblance to the impeachment of the witness in Pruitt. By reciting excerpts of Williams’ pretrial statement and asking Williams if he made these declarations, the State might as well have played an audiotaped version of Williams’ statement to the jury. The trial court judge was wary of this method of questioning, as indicated by his statement that “it’s the old story, you don’t want the prosecutor to just go sentence by sentence through a statement and read the whole statement . . . .” (R. at 553.) Nevertheless, the court permitted this style of questions by the State even after Williams testified that Appleton was not present when the three assailants came to the house. (R. at 549.)

    Once Williams denied Appleton’s involvement in the events, the State should have made Williams aware of specific portions of his testimony that were inconsistent with statements he made prior to trial and given him an opportunity to explain those inconsistencies. Only one glaring inconsistency existed, however, between Williams’ testimony and the portions of Williams’ pretrial statement that the State recited. Williams previously implicated Appleton as a participant and then at trial said Appleton was not involved. (R. at 532-60.) When questioning Williams about this inconsistency, the prosecutor’s impeachment inquiry should have concluded when Williams responded that he remembered making the statement but it was not true because Appleton was not present during the incident. (R. at 554.)

Six pages of the record are consumed with the State reciting portions of Williams’ pretrial statement, the State asking Williams whether he remembers making the statement, and Williams responding that either he did not remember making the statement or he lied because “Pooh” was not present. (R. at 554-59.) We find it difficult to understand that a legitimate impeachment purpose was served by the this method of questioning.

Once Williams admitted that he made a police statement prior to trial that was inconsistent with his testimony regarding Appleton’s involvement in the incident, impeachment was complete. Williams had admitted himself a liar. Reciting segments of Williams’ pretrial statement was thus superfluous. See United States v. Soundingsides, 820 F.2d 1232, 1240-41 (10th Cir. 1987) (no rational basis for introducing prior inconsistent statement where witness does not deny making the inconsistent statement). The only purpose such recitation could have would be to get the details of Williams’ former statement before the jury as substantive evidence, the very thing we decided to prohibit in overruling Patterson.

    As we indicated above, the State also improperly questioned Blanchard during certain portions of its direct examination of her. We give less treatment to the State’s questioning of Blanchard, because almost all of her incriminating statements of Appleton were made during appropriate examination. Furthermore, some reference to Blanchard’s pretrial statement was warranted. For example, Blanchard testified that she was unsure whether Appleton and the two other assailants duct taped anybody. (R. at 475.) In her prior statement to the police, however, she said the attackers wrapped Solberg’s hands, feet and head with duct tape. (R. at 487-88.) After being made aware of the statement, she recalled that the attackers had in fact taped Solberg. (Id.)

    On the other hand, nearly six pages of the record are consumed by the State reading line-by-line excerpts from Blanchard’s pretrial statement. A couple of examples follow:

Q: Now do you ever recall telling the Gary Police Department, the detectives, about, “They kept messing with Ron. Then they pushed Ruby by me and went back to messing with Ron. ‘I got you now. I got you now.’”

        . . . .

Q: Do you remember telling the Gary Police Officers, “Then Pooh was asking Mary who she was, but she wouldn’t answer him. Ruby was laying on the floor, blood was coming out her mouth and nose, and she was twitching”?

(R. at 487-89.) These statements covered topics not addressed in Blanchard’s trial testimony. They were therefore not inconsistent with Blanchard’s testimony, and it was inappropriate for the prosecution to recite them.
        
Despite Williams’ denial of Appleton’s presence at the crime scene and Blanchard’s denial that Appleton participated in certain events, their testimony was substantially similar to Solberg’s. (R. at 331-40, 465-75, 538-43.) Thus, even though the jury heard evidence they should not have during the State’s line-by-line recitation of the witnesses’ pretrial statements, essentially the same evidence was properly before the jury through Solberg’s testimony. As we indicated previously, the error in admission of evidence will typically be harmless “where the hearsay evidence is merely cumulative of other evidence properly admitted.” Cooley, 682 N.E.2d at 1282. While the error was harmless in this instance, it might lead to reversal under different facts.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.