BARNEY DALE WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in restricting the appellant's right to cross-examine a crucial state witness regarding a prior inconsistent statement.
[1] A party may attack the credibility of a witness by introducing statements of the witness that are inconsistent with his present testimony.
[2] A prior inconsistent statement may be oral and unsworn and may be drawn out on cross-examination of the witness.
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Join FLexlaw to unlock all legal intelligenceFollowing a deceptive phone call by law enforcement, items were moved from the appellant's residence to a truck, where over 100 pounds of marijuana we…
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SCHOONOVER, Judge.
Appellant, Barney Dale Williams, appeals the judgment and sentence entered pursuant to a jury verdict finding him guilty of trafficking in cannabis. We reverse and remand because the trial court erred in restricting appellant’s right to cross-examine a crucial state witness.
On February 20, 1984, Sgt. James Minick of the Lee County Sheriff’s Department made a telephone call to appellant’s residence. Without identifying himself, Sgt. Minick stated to the male who answered the telephone that he had to talk to the appellant and that “they just got me and my stuff with a search warrant. I overheard them saying they were coming to your house next. Get rid of your stuff.”
After the call ended, another deputy who had been stationed near the appellant’s home observed a man exit the residence and begin to place items in the back of a truck. The truck was eventually driven across the road in front of the appellant’s home and backed into a wooded area. A man very similar to the appellant then returned from the truck to the residence. More than 100 pounds of marijuana and a duffel bag containing certain other items, one of which bore appellant’s fingerprint, were subsequently discovered in the truck.
At trial, Russell Dwayne Goff, a state witness, testified on direct examination that appellant purchased a truck from him shortly after this incident. Mr. Goff testified that appellant stated he had moved his own truck into a wooded area after receiving a phone call from the police and that the truck had been confiscated. During cross-examination, the defense attempted to ask Mr. Goff whether he had, on a prior occasion, made a statement inconsistent with this testimony. The court sustained the state’s objection to this line of questioning, explaining that a witness could not be impeached by an oral statement.
Appellant’s attorney made a proffer that six days before trial, while concluding arrangements to take Mr. Goffs deposition, Mr. Goff told him that other than the sale of the truck to the appellant, he did not know anything about this case or the appellant’s involvement in it. The attorney proffered that he desired to describe the circumstances under which that statement had been made and then to ask Mr. Goff whether he had made the statement.
The trial court erred in refusing to allow appellant to cross-examine Mr. Goff regarding this prior inconsistent statement. A party may attack the credibility of a witness, other than his own witness, by introducing statements of the witness that are inconsistent with his present testimony. § 90.608(l)(a), Fla.Stat. (1983). The prior inconsistent statement may be oral and un-sworn and may be drawn out on cross-examination of the witness himself and, if on cross-examination the witness denies, or fails to remember, making such a statement, the fact that the statement was made may be proved by another witness. United States v. Sisto, 534 F. 2d 616 (5th Cir. 1976); see § 90.614(2), Fla.Stat. (1983).
As the only witness who could provide direct evidence that appellant was in actual possession of the truck, Mr. Goff was a key state witness. It is error to limit the scope of cross-examination in a manner that keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony, especially where the cross-examination is directed to a key state witness. Williams v. State, 386 So. 2d 25 (Fla. 2d DCA 1980); Stradtman v. State, 334 So. 2d 100 (Fla. 3d DCA 1976), aff'd, 346 So. 2d 67 (Fla.1977). Whenever a witness takes the stand he places his credibility in issue, and under the circumstances of this case, Mr. Goff’s credibility was a crucial issue. The court, therefore, should have given the appellant broad latitude in cross-examination of Mr. Goff in order to test his perception and memory and, if possible, to impeach him. Mendez v. State, 412 So. 2d 965 (Fla. 2d DCA 1982).
The state asserts that appellant’s defense attorney was properly prevented from questioning Mr. Goff because it would have been unethical for the attorney to give testimony concerning the witness’ prior inconsistent statement. We disagree. If Mr. Goff, upon cross-examination, were to have admitted making a prior inconsistent statement, the need for defense counsel to consider testifying, and therefore the ethical question, would not have even arisen. See Brumbley v. State, 453 So. 2d 381 (Fla.1984). Furthermore, although as a general rule a lawyer should not testify in litigation in which he is an advocate, he may do so where unanticipated circumstances arise and when it is necessary to prevent a miscarriage of justice. Schwartz v. Wenger, 267 Minn. 40, 124 N.W. 2d 489 (1963). In those rare cases where the testimony of an attorney is needed to protect his client’s interests, it is not only proper but mandatory that such testimony be forthcoming. Schwartz.
Where the ethical impediment cannot be overcome by a proper showing of unanticipated circumstances, the remedy is to exclude the attorney as a lawyer in the cause, not to exclude him as a witness. Justice is what is sought in the courts; another forum exists to deal with ethical violations. Davison v. First Federal Savings & Loan Assoc., 413 So. 2d 1258, 1259 n. 1 (Fla. 5th DCA 1982).
Accordingly, because the appellant was denied his right to adequately confront and cross-examine the witnesses against him, the trial court erred, and we must reverse and remand for a new trial. Coxwell v. State, 361 So. 2d 148 (Fla.1978).
Reversed and remanded.
CAMPBELL, A.C.J., and LEHAN, J., concur.
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Marrero v. State, 478 So. 2d 1155 (Fla. 3d DCA 1985)…prosecutor alone witnessed Rodriguez’s statement — or if only the prosecutor, through his notes, remembered it — then quite obviously he would have to confront the ethical problems presented by his need to testify in the case. See Williams v. State, 472 So. 2d 1350 (Fla. 2d DCA 1985) (where attorney must testify to avoid a miscarriage of justice, remedy is to exclude attorney as a lawyer, not as a witness). While the prosecutor, by not testifying to the impeaching statement, may have successfully avoided the e…
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Dorall Daniel Marshall v. State, 68 So. 3d 374 (Fla. 5th DCA 2011)…, the State does not defend the correctness of the trial court’s ruling. Indeed, a party may attack a witness’s credibility by introducing a prior statement of the witness that is inconsistent with the witness’s present testimony. Williams v. State, 472 So. 2d 1350, 1352 (Fla. 2d DCA 1985) (citing § 90.608(1)(a), Fla. Stat. (1983)). The prior inconsistent statement may be oral and unsworn. If the witness cannot recall making the prior inconsistent statement, the fact that the statement was made may be proved b…
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Kimble v. State, 537 So. 2d 1094 (Fla. 2d DCA 1989)…s present testimony. § 90.608(l)(a), Fla.Stat. (1987). The Florida Evidence Code does not require the witness’s prior inconsistent statement to be reduced to writing in order to impeach the witness under section 90.-608(l)(a). See Williams v. State, 472 So. 2d 1350 (Fla. 2d DCA 1985). In Williams, this court considered circumstances very similar to those involved in this case and held: The prior inconsistent statement may be oral and unsworn and may be drawn out on cross-examination of the witness himself and…
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
- Coxwell v. State, 361 So. 2d 148 (Fla. 1978)
- United States v. Sisto, 534 F.2d 616 (5th Cir. 1976)
- Brumbley v. State, 453 So. 2d 381 (Fla. 1984)
- Rafiel Mendez v. State, 412 So. 2d 965 (Fla. 2d DCA 1982)
- State v. Luckie Stradtman, 346 So. 2d 67 (Fla. 1977)
- Luckie Stradtman v. State, 334 So. 2d 100 (Fla. 3d DCA 1976)
- Clementine Williams v. State, 386 So. 2d 25 (Fla. 2d DCA 1980)
- Davison v. First Fed. Sav. & Loan Ass'n of Orlando, 413 So. 2d 1258 (Fla. 5th DCA 1982)