## Facts

- Jason Louis Milto was driving with passenger Gregory Mitchell when Officer Kevin O’Neill stopped the car for a license-plate violation.
- During the stop, O’Neill saw Mitchell remove a gun from the glove compartment and place it under the seat.
- O’Neill recovered the gun from under the seat and found bullets in the glove compartment.
- Mitchell initially told police the gun was his, but later changed his account and said Milto owned the gun.
- Oscar Patrick, a coworker of Mitchell, gave police a statement saying Milto had previously shown Patrick the gun, purchased bullets for it at the K-Mart where they worked, and that Patrick saw Milto load the gun.
- At trial, Patrick testified that Milto showed him the gun, but Patrick was unsure whether he actually saw Milto load it; he acknowledged his earlier statement could have been accurate, but he could not remember clearly more than a year later.
- Defense counsel attacked Patrick’s credibility by suggesting Patrick had a reason to lie to protect Mitchell at work because Mitchell was an assistant manager at K-Mart.
- By the time of trial, Patrick and Mitchell had not worked together for about a year, and there was no evidence they had stayed in contact.
- The State offered Patrick’s prior police statement as a prior consistent statement to rehabilitate him; the trial court admitted it.
- The jury found Milto guilty of possession of a firearm by a convicted felon under La. R.S. 14:95.1, and Milto appealed.

## Issues

1. Whether Patrick’s prior police statement was admissible as a prior consistent statement under La. Code Evid. art. 801(D)(1)(b) to rebut an express or implied charge of recent fabrication, improper influence, or motive.
2. If the statement was inadmissible, whether admitting it was harmless error.
3. Whether the State’s questioning improperly rehabilitated or bolstered witnesses in a way that required reversal.
4. Whether the State’s use of an undisclosed prior conviction to impeach Milto warranted a new trial based on unfair prejudice.

## Decision

- The court concluded Patrick’s prior statement was not admissible under La. Code Evid. art. 801(D)(1)(b) because it did not meaningfully rebut the claimed motive to fabricate.
- The court held, however, that admitting the statement was harmless error in light of the remaining evidence and the cumulative nature of the statement.
- The court rejected claims that the State’s rehabilitation of witnesses required reversal.
- The court found no reversible prejudice from the State’s failure to disclose a prior conviction later used to impeach Milto.
- The court affirmed Milto’s conviction and sentence.

## Legal Principles

- Under La. Code Evid. art. 801(D)(1)(b), a prior consistent statement is treated as nonhearsay only when the declarant testifies and is subject to cross-examination, and the statement is offered to rebut a charge of recent fabrication, improper influence, or motive.
- Even though the Code of Evidence does not expressly require that the consistent statement be made at an “unsuspicious time,” courts must still assess relevance under La. Code Evid. arts. 401–403; a statement made while the same alleged motive to lie existed generally has little probative value to rebut that motive.
- Evidentiary rulings on rehabilitation and related admissibility questions are reviewed with deference to the trial court, subject to reversal only for legal error and resulting prejudice.
- An evidentiary error does not require reversal if the reviewing court determines the error was harmless—i.e., it did not substantially affect the verdict in light of the whole record.
- A discovery failure involving impeachment material does not automatically require a new trial; the question is whether the nondisclosure caused substantial prejudice to the defense’s ability to prepare and present its case.

## Conclusion

State v. Milto affirmed a felon-in-possession conviction while clarifying limits on prior consistent statements: Patrick’s prior police statement was not a proper rehabilitative consistent statement because it was made when the same workplace-based motive alleged by the defense could have existed, making it of little value to rebut fabrication, but the error in admitting it did not justify reversal given the strength of the remaining evidence and the cumulative nature of the statement.


State v. Milto, 751 So. 2d 271 (1999)