## Facts

- Milton Brown and his girlfriend, Gwendolyn Stewart, drove to a house in Baton Rouge late at night; Brown went inside while Stewart stayed in the car.
- A few minutes later, Brown came out and crossed the street toward a group of men.
- Stewart then saw Leroy Woods cross the street in the same direction as Brown.
- Stewart heard Brown begging someone not to shoot him, followed by gunshots.
- Stewart could not see the actual shooting, but told police that immediately afterward she saw Woods holding a gun.
- Brown, while still conscious, told responding police that “Leroy Woods” shot him. Brown later died from his gunshot wounds.
- The State charged Woods with murder. At trial, the jury convicted him of the responsive offense of manslaughter.
- During trial, Stewart initially testified that she did not see Woods after the shooting. When questioned further, she gave mixed answers, stating both that she had not seen Woods and that she could not remember whether she saw him.
- The prosecutor asked whether hearing Stewart’s earlier taped statement to police would help her remember; she said it would.
- Over defense objection, the trial court permitted the State to play the tape for Stewart in the presence of the jury.
- After hearing it, Stewart testified the prior statement was truthful, was made while events were fresh in her mind, and reflected her memory of what happened. She then testified she saw Woods holding a gun after the shooting, identified Woods in court as the shooter, and identified clothing he wore that night.
- Woods was later adjudicated a second felony offender and received a 20-year hard-labor sentence. He appealed.

## Issues

1. Whether the trial court erred by allowing the State to play Stewart’s taped police statement to the jury under Louisiana Code of Evidence article 803(5) (recorded recollection) without establishing that Stewart had insufficient present memory to testify fully and accurately.
2. If admission was erroneous, whether the error required reversal or was harmless in light of the other evidence identifying Woods as the shooter.

## Decision

- The court held the trial court erred in permitting the taped statement to be played to the jury as a recorded recollection because the foundation for article 803(5)—true insufficient recollection—was not established.
- The court concluded, however, that the error was harmless given the strength of the remaining evidence, including Brown’s identification of Woods as the shooter and Stewart’s observations surrounding the shooting.
- The court affirmed Woods’s manslaughter conviction and his habitual-offender sentence.

## Legal Principles

- Louisiana Code of Evidence article 803(5) applies only when a witness has insufficient recollection to testify fully and accurately, even though the witness once had knowledge and made or adopted a record when the matter was fresh in memory and the record was accurate.
- Article 803(5) is not satisfied merely because a witness is inconsistent, reluctant, or evasive; the proponent must show genuine inability to recall the events well enough to testify.
- Absent the required memory loss, article 803(5) does not authorize having the witness read, or listen to, the prior record before the jury; using the rule that way places hearsay before the jury.
- Recorded recollection (article 803(5)) differs from present recollection refreshed; when a prior statement is used only to refresh memory, it is not itself introduced for its truth, and different procedures apply.
- Erroneous admission of hearsay does not require reversal when the reviewing court concludes the verdict was not affected because other properly admitted evidence independently supports the conviction.

## Conclusion

State v. Woods held that the trial court misapplied the recorded-recollection exception by allowing an eyewitness’s taped police statement to be played for the jury without first establishing that the witness lacked sufficient present memory, but the court affirmed because the mistake did not affect the verdict in light of other identification evidence, including the victim’s statement naming Woods as the shooter.


State v. Woods, 619 So. 2d 803 (1993)