VERNON LEE SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Vernon Lee Smith appealed his conviction, challenging the prosecutor's questioning of a defense witness about prior inconsistent statements. The court held that while the prosecutor's questions insinuating unproven impeaching facts were improper, Smith's objection was meritless and he waived the error by failing to move for mistrial when the prosecutor failed to provide corroborating testimony.
The court held that while prosecutor questions insinuating impeaching facts not later proved are condemnable, Smith's objection lacked merit because unrecorded oral statements can be used to impeach testimony. The error was waived because Smith failed to move for mistrial or register complaint when the prosecutor did not provide impeaching testimony.
[1] A prosecutor's questions to a defense witness that insinuate impeaching facts, which are not subsequently proven, are error.
[2] A defendant waives the right to complain about a prosecutor's unproven insinuations if the defendant fails to move for a mistrial or register a complaint when the impeach…
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Establishes the legal principle that both types of improper insinuation of unproven facts are condemnable, though differing in degree.
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Join FLexlaw to unlock all legal intelligenceSmith was charged with a crime committed on a Wednesday. During trial, the prosecutor questioned a defense witness about a prior pre-trial interview i…
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DANIEL S. PEARSON, Judge.
The difference between a prosecutor’s questions to a defense witness which insinuate impeaching facts, the proof of which is nonexistent, so clearly impermissible, see Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978); Thorpe v. State, 350 So. 2d 552 (Fla. 1st DCA 1977); Marsh v. State, 202 So. 2d 222 (Fla. 3d DCA 1967), and questions, such as those asked below, insinuating impeaching facts which, although said to exist, are not later proved, is one of degree only, and either interrogation, because not followed by actual impeachment, is eon-demnable. However, since Smith’s sole objection to the prosecutor’s “didn’t-you-say-tome-in-a-pre-trial-interview” line of questioning was that the witness could not be impeached by an unrecorded oral statement not witnessed by a third party, an objection devoid of merit, see Mungin v. State, 109 Fla. 310, 147 So. 577 (1933); Stewart v. State, 42 Fla. 591, 28 So. 815 (1900); Mahone v. State, 222 So. 2d 769 (Fla. 3d DCA 1969); and since, more importantly, Smith failed to later move for a mistrial, or register any complaint, when no impeaching testimony by the prosecutor was forthcoming,1 the error was waived.
Affirmed.
. The prosecutor informed the court that the witness had previously told him that she was with the defendant at a movie on a Tuesday, the crime having been committed on a Wednesday. He stated that her trial testimony that she was with the defendant at a movie on Wednesday was unexpected. Under these circumstances, it cannot be said that the prosecutor could have anticipated he would be a witness in the case and that he was remiss in undertaking the prosecution. See Fla.Bar Code Prof.Resp. D.R. 5-102(A); compare Fla.Bar Code Prof.Resp. EC5-9 with EC5-10. Nor was he remiss in questioning the witness as to her prior interview statement, since, as he correctly noted, the witness might admit the prior inconsistency, obviating any need for impeachment through him. He was, however, remiss in not testifying to the witness’s statements and subjecting himself to cross-examination and in not anticipating the possibility that the witness might change her story and allowing himself to become the sole person who could contradict the witness.
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Harrel Franklin Braddy v. State, 111 So. 3d 810 (Fla. 2012)…883 So. 2d 341, 343 (Fla. 4th DCA 2004). This is true for questions “which insinuate impeaching facts, the proof of which is nonexistent,” and those “insinuating impeaching facts which, although said to exist, are not later proved.” Smith v. State, 414 So. 2d 7, 7 (Fla. 3d DCA 1982) (noting that the difference between these types of questions “is one of degree only, and either interrogation, because not followed by actual impeachment, is condemnable”). Here, the State did not present any evidence that Brad…
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DEL Monte Banana Co. & Fed. Transp., Inc. v. Chacon, 466 So. 2d 1167 (Fla. 3d DCA 1985)…ate, 316 So. 2d 41 (Fla.1975) (during the course of interrogation, questions should be propounded to prove facts by direct testimony emanating from the witness rather than by insinuations or innuendoes suggested by the interrogator); Smith v. State, 414 So. 2d 7 (Fla. 3d DCA 1982) (questions insinuating impeaching facts which are not [*1173] proved or are nonexistent are impermissible). In the present case, the only fact relevant here that was established on cross-examination was that the captain left the e…
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Florencio Alvarez v. State, 467 So. 2d 455 (Fla. 3d DCA 1985)…2). The requirement that the attorney have the evidence necessary for impeachment merely assures that he will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true. See Smith v. State, 414 So. 2d 7 (Fla. 3d DCA 1982); Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978); Thorpe v. State, 350 So. 2d 552 (Fla. 1st DCA 1977). Clearly, “it would be highly improper if [an attorney], upon receiving a negative answer to questions about past convictions…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mahone v. State, 222 So. 2d 769 (Fla. 3d DCA 1969)
- Stewart v. State, 42 Fla. 591 (Fla. 1900)
- Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978)
- Mungin v. State, 109 Fla. 310 (Fla. 1933)
- Marsh v. State, 202 So. 2d 222 (Fla. 3d DCA 1967)
- Thorpe v. State, 350 So. 2d 552 (Fla. 1st DCA 1977)