CHARLES WESLEY PRICE, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLANT/CROSS-APPELLANT
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The Florida appellate court reversed Price's conviction because the prosecution improperly introduced evidence of a witness's prior inconsistent statement during its case-in-chief to preemptively explain away anticipated defense impeachment, rather than waiting to rehabilitate the witness after actual impeachment by the defense.
The prosecution may not introduce such evidence during its case-in-chief to anticipate defense impeachment. Evidence explaining a witness's prior inconsistent statement may only be introduced after the defense has actually impeached the witness with that statement, as a rehabilitation measure. Introducing such evidence during the prosecution's case-in-chief is improper and constitutes reversible error.
[1] A party calling a witness may not introduce evidence of the witness's prior inconsistent statements to explain or rehabilitate the witness's testimony during the State's…
[2] Evidence that a witness made a prior inconsistent statement due to threats of bodily harm is inadmissible when introduced by the State during its case in chief, before th…
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Join FLexlaw to unlock all legal intelligence“The State 'anticipates' impeachment of its own witness by the defense at the State's peril because the option is always with the defense to impeach or not.”
Establishes the fundamental principle that the prosecution cannot preemptively rehabilitate its witness based on anticipated defense impeachment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAt Price's first trial, witness Sonya Lee Whitlow Miller testified she had not received quaaludes from the defendant. A mistrial was declared and the …
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COWART, Judge.
A mistrial was declared at defendant’s first trial and he was retried. At the first trial a witness, Sonya Lee Whitlow Miller, testified that she had not received quaaludes from the defendant. At the second trial the State called Ms. Miller and she testified that defendant gave her two quaa-ludes from a certain bag. Over the objection of defense counsel the trial court then permitted the state attorney to further question the witness to bring to the attention of the second jury that the witness had made a prior inconsistent statement at the first trial, that the prior sworn statement was not true and that the witness had made the prior untrue statement because one James Elliot had twice threatened the witness to the effect that if the witness ever told the truth about anything against the defendant, the witness would be shot.
We reverse on this point.
The State argues that it was merely anticipating that the defense was going to impeach Ms. Miller by her prior inconsistent statement and thus sought to explain her inconsistent statements citing United States v. Cochran, 499 F. 2d 380 (5th Cir.1974), which held that a witness impeached on the basis of a prior inconsistent statement may endeavor to explain that the prior statement was made when the witness feared bodily harm. The State’s argument might have merit if the testimony it elicited had come after Ms. Miller had in fact been impeached by the defense with her prior inconsistent statement and the State was seeking to rehabilitate her.
However, here the testimony came in during the State’s case in chief and thus was untimely and improper. See Erp v. Carroll, 438 So. 2d 31 (Fla. 5th DCA 1983); Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984); United States v. Carney, 461 F. 2d 465 (3d Cir.1972).
The State “anticipates” impeachment of its own witness by the defense at the State’s peril because the option is always with the defense to impeach or not. The defense often quite reasonably does not impeach a particular witness because the defense knows that the evidence that the State is entitled to present on rehabilitation of its witness will be much more harmful to the defense than any benefit derived from an impeachment of that witness. In addition, in such circumstances the State is always vulnerable to the asser tion by the defense counsel that he was going to forego impeachment.
Furthermore, when a party calls a witness, obtains favorable testimony and then undertakes to anticipate impeachment by introducing the witness’ prior inconsistent statement the party is vulnerable to the assertion that it is attacking the credibility of its own witness which is impermissible.1
Here the implication is clear that because he was guilty the defendant had caused James Elliot to threaten the witness not to tell the truth. This evidence was highly prejudicial and harmful and its admissibility was objected to and constitutes reversible error. The defendant's conviction is reversed and the cause is remanded for a new trial.
REVERSED AND REMANDED.
COBB, C.J., and ORFINGER, J., concur. . Section 90.608(l)(a), Florida Statutes, provides that "any party, except the party calling the witness, may attack the credibility of a witness by:
(a) introducing statements of the witness which are inconsistent with his present testimony.”
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Bell v. State, 491 So. 2d 537 (Fla. 1986)…SHAW, Justice. We have before us by petition for review Bell v. State, 473 So. 2d 734 (Fla.2d DCA 1985), because the district court of appeal certified that its decision is in direct conflict with Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. Bell and McBride were charged with trafficking in cocaine. Following their arrest and McBride’s entering a guilty plea, [*538] he stated under o…
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State v. Price, 491 So. 2d 536 (Fla. 1986)…SHAW, Justice. We have before us by petition for review Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985), due to express and direct conflict with Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The relevant facts in this case, as stated by the district court, are as follows: A…
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Sloan v. State, 491 So. 2d 276 (Fla. 1986)…SHAW, Justice. We have by petition for review Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985), due to express and direct conflict with Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Sloan was convicted and sentenced for burglary of a structure and grand theft. The trial court permitted the state to question a co-perpetrator, Grant, regarding prior incons…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- United States v. Cochran, 499 F.2d 380 (5th Cir. 1974)
- ERP v. Carroll, 438 So. 2d 31 (Fla. 5th DCA 1983)
- United States v. Carney, 461 F.2d 465 (3d Cir. 1972)