United States Court of Appeals for the Fourth Circuit
21 F.3d 576 (4th Cir. 1994)
On September 4, 1994, a rap concert and dance at Fort Belvoir, Virginia ended when members of two of the performing bands got in a fight. Shortly thereafter, a man wearing an orange shirt or jacket fired a gun at trucks leaving the recreation center. Military police pulled over a van carrying Nigel Ince (defendant), Angela Neumann, and two other friends at the exit to Fort Belvoir. Ince was identified by two men as the person who had fired the shots (though he was not wearing an orange shirt at the time). Neumann then gave an unsworn statement to military police officer Roger Stevens that Ince had admitted firing the shots to Neumann. At Ince’s trial, the prosecution called Neumann and asked her to testify regarding Ince’s statements. Neumann claimed she did not recall and the unsworn statement did not refresh her recollection. The prosecution then called Stevens to testify as to what Neumann said, over Ince’s objections. The trial ended with a deadlocked jury. At the second trial, Neumann again did not recall and the prosecution again called Stevens to impeach Neumann as to her memory loss. Stevens testified that Neumann told him that Ince had confessed. Ince’s defense was mistaken identity; that it was another person who had fired the gun. Ince was convicted at the second trial and appealed.
Rule of Law
Holding and Reasoning (Murnaghan, J.)
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