State vs. Smith

In this appeal, we address whether prior inconsistent statements can be used substantively to corroborate a confession when the prior statements are admitted into evidence without objection. We also consider whether the failure of the trial court to instruct the jury as to the limited use of the prior statements constitutes plain error. The Court of Criminal Appeals held that prior inconsistent statements could not be used as substantive evidence and that the failure of the trial court in this case to give a limiting instruction amounted to plain error. For the reasons stated herein, we hold that by not objecting to the admission of the statements, the appellee waived any objection to their use by the jury as substantive evidence to corroborate the appellee’s two confessions. Consequently, we hold that the evidence in this case is sufficient to support a finding of guilt beyond a reasonable doubt. Finally, because the decision to forgo any objection to the hearsay testimony was a deliberate, tactical decision by trial counsel, we are precluded from considering admission of the evidence under a plain error analysis. We reverse the judgment of the Court of Criminal Appeals and reinstate the appellee’s conviction and sentence for aggravated sexual battery.