TIMOTHY NELSON MCGUIRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy McGUIRE was convicted of burglary of a conveyance and sexual battery after a jury trial. The Fourth District Court of Appeal reversed and remanded for a new trial because the trial court improperly admitted the defendant's prior inconsistent statements for impeachment purposes without first giving him the opportunity to explain or deny them, in violation of Florida's evidence statute.
The court held that the trial court erred in permitting the State to present testimony regarding the defendant's prior inconsistent statements without first giving the defendant the opportunity to admit, deny, or explain those statements, as required by Florida Statute Section 90.614(2). Although such statements may be admissible for impeachment under Harris v. New York, the statutory predicate requirement must be satisfied.
[1] Voluntary statements made by a defendant, even if inadmissible for substantive purposes, may be admissible for impeachment purposes.
[2] A prior inconsistent statement of a witness is inadmissible unless the witness is afforded an opportunity to explain or deny the statement.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 90.614(2), Florida Statutes (1979), provides that a prior inconsistent statement is inadmissible unless a witness is first afforded the opportunity to explain or deny the statement.”
Establishes the statutory requirement that was violated by the trial court's admission of the prior inconsistent statements without giving the defendant the opportunity to explain or deny them.
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Join FLexlaw to unlock all legal intelligenceAppellant was arrested and interviewed by a police officer in jail. After refusing to give a formal statement, he agreed to speak informally, believin…
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BERANEK, Judge.
Appellant was charged and convicted of burglary of a conveyance and sexual battery. Defendant pled not guilty and was convicted after a jury trial in which he testified. Although placed in the physical area of the crime, defendant took the stand and denied his involvement. He raises four points on appeal, one of which, the admission of impeachment evidence without a proper predicate, is dispositive of the matter. After arrest, a police officer interviewed defendant while in jail. She requested he make a formal statement, which he refused to do. She then asked if he would talk informally, leading appellant to believe that an informal admission would not be used against him. Defendant, who obviously had a very low intelligence level, denied his guilt but made several very damaging admissions. Defendant stated that on the day in question he had seen another individual who was his “twin.” This “twin” was dressed exactly the same, had exactly the same hairstyle, and was even wearing the same shoes and sunglasses. Defendant stated to the police officer that he was sure this “twin” had committed the crimes for which he was being blamed. In the same, off-the-record, informal statement, defendant stated that he had been drinking beer and smoking marijuana all day and that he could not remember the day very well, and might be guilty. The police officer did not reduce these statements to writing. The trial court granted appellant’s motion to suppress his statements; however, at trial the court ruled the statements could be used for purposes of impeachment. Appellant took the stand and during cross-examination was asked numerous times whether he had made any prior inconsistent statements. His answer each time was that he did not understand the words being used. Eventually, he said he could not remember. The questions on cross-examination did not include the content of the prior statements. After appellant rested his case, the State called the police officer as a rebuttal witness, and she testified to the appellant’s “informal” statements which were contrary to his trial testimony.
The statements made by appellant were voluntary and were admissible for impeachment purposes pursuant to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Nowlin v. State, 346 So. 2d 1020 (Fla.1977). However, the trial court erred in permitting the State’s rebuttal witness to testify to appellant’s prior inconsistent statements over his objection that he had not been given the opportunity to admit, deny, or explain the prior statements. Section 90.614(2), Florida Statutes (1979), provides that a prior inconsistent statement is inadmissible unless a witness is first afforded the opportunity to explain or deny the statement. In the case of Hutchinson v. State, 397 So. 2d 1001 (Fla. 1st DCA 1981), the First District reached the same conclusion in a situation where the prior inconsistent statement was that of a witness. Appellant here presents a far more compelling case in that the statements were his own and tended to both impeach and incriminate him. We, therefore, reverse and remand for a new trial.
We further note that the comment made by the prosecutor during closing argument, “It is not my job to prosecute innocent people,” was an improper remark and should not be repeated on retrial. Buckhann v. State, 356 So. 2d 1327 (Fla. 4th DCA 1978); Price v. State, 267 So. 2d 39 (Fla. 4th DCA 1972). The matter is remanded for a new trial.
REVERSED AND REMANDED.
DOWNEY and DELL, JJ., concur.
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Citator
Cited By
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Riley v. State, 560 So. 2d 279 (Fla. 3d DCA 1990)…tor may not ridicule a defendant or his theory of defense, Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987), or express a personal belief in the guilt of the accused. Williamson v. State, 459 So. 2d 1125 (Fla. [*281] 3d DCA 1984); McGuire v. State, 411 So. 2d 939 (Fla. 4th DCA 1982). Reversed and remanded for a new trial.…
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Thornes v. State, 485 So. 2d 1357 (Fla. 1st DCA 1986)…opportunity to refresh his memory, and make his answer advisedly.” Id. at 58, 59. The rule enunciated above is embodied in Section 90.614, Florida Statutes (1983). See also Hutchinson v. State, 397 So. 2d 1001 (Fla. 1st DCA 1981); McGuire v. State, 411 So. 2d 939 (Fla. 4th [*1361] DCA 1982); Hoctor By and Through Hoctor v. Tucker, 432 So. 2d 1352 (Fla. 5th DCA 1983); Studstill v. State, 394 So. 2d 1040 (Fla. 5th DCA 1981); Ehrhardt, Florida Evidence, Section 614.1 (2nd Ed.1984). By reason of defense counsel…
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Duque v. State, 460 So. 2d 416 (Fla. 2d DCA 1984)…e, I don’t need it. ’Cause I would cry at night if that girl is innocent behind bars. I wouldn’t sleep. [Emphasis added.] This comment, although not objected to by appellant, was improper and should not be repeated on retrial. See McGuire v. State, 411 So. 2d 939 (Fla. 4th DCA 1982). We also find merit in appellant’s argument that the trial court erred by ruling that a defense witness could not testify to statements made to her by the witness’ husband, a coconspirator, which was consistent with appellant’s…
Authorities Cited
- Harris v. New York, 401 U.S. 222 (U.S. 1971)
- Nowlin v. State, 346 So. 2d 1020 (Fla. 1977)
- In the Interest of S. L. M., 346 So. 2d 1020 (Fla. 1977)
- Buckhann v. State, 356 So. 2d 1327 (Fla. 4th DCA 1978)
- Price v. State, 267 So. 2d 39 (Fla. 4th DCA 1972)
- Hutchinson v. State, 397 So. 2d 1001 (Fla. 1st DCA 1981)