CLIFFORD BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1985-06-07
No. 84-1616
GRIMES, A.C.J., and SCHEB, J., concur.
473 So. 2d 734 Florida District Court of Appeal, Second District (1985) Positive Treatment
Cited by 16 cases

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Synopsis

Clifford Bell was convicted of cocaine trafficking after his co-conspirator, McBride, testified for the prosecution. Bell appeals, arguing the prosecutor improperly engaged in 'anticipatory rehabilitation' by eliciting that McBride had initially lied to protect Bell out of friendship, thereby preempting impeachment through cross-examination. The court affirms, holding that this rehabilitative questioning during direct examination does not constitute improper impeachment under Florida law and does not deprive the defense of meaningful cross-examination opportunities.


Holding

The court affirmed Bell's conviction, holding that anticipatory rehabilitation is a proper prosecutorial technique that does not constitute improper impeachment under section 90.608. The prosecutor's candid disclosure that McBride had earlier fabricated statements was intended to enhance McBride's credibility rather than attack it, and the defense retained full ability to cross-examine McBride regarding the inconsistencies.


Headnotes

[1] A prosecutor may elicit testimony from a witness on direct examination explaining prior inconsistent statements made to protect a defendant, as this constitutes anticipat…

[2] Anticipatory rehabilitation of a witness on direct examination, by disclosing prior inconsistent statements made to protect a defendant, does not improperly "rob" the def…

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Key Quotes

“[QUOTE REDACTED — failed verbatim audit (paraphrase, not verbatim). See original_text for the text as originally displayed.]”

Establishes the legal concept being challenged and the nature of the prosecutor's technique.

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Facts & Procedural History

Clifford Bell and McBride were involved in the sale and delivery of cocaine to an undercover detective. After arrest, McBride initially stated under o…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

The appellant in this criminal proceeding, Clifford Bell, urges the reversal of his conviction claiming that the prosecutor was improperly permitted to impeach a critical prosecution witness. We affirm the conviction.

Bell and a companion, McBride, were involved in the sale and delivery of cocaine to an undercover detective. Following their arrest, McBride stated under oath that Bell had nothing to do with the drug activity, that they had been friends for many years, that Bell was innocent of the crime and that he was merely in the parking lot to collect money from McBride for the purpose of buying his wife a birthday present. McBride pleaded guilty to the cocaine offense with which he was charged and he testified on behalf of the state in Bell’s trial. During McBride’s direct examination the prosecutor elicited, over Bell’s objection, that McBride had initially lied about Bell’s participation in the crime because he was attempting to protect Bell out of friendship. Through such questioning, the prosecutor was seeking to thwart an attack upon McBride’s credibility. Cf. Jacobson v. State, 375 So. 2d 1133, 1135 (Fla. 3d DCA 1979). That which we denominate as “anticipatory rehabilitation” forms the basis for Bell’s challenge to his conviction.

Our research discloses no definitive precedent upon which we sanction the trial technique followed by the prosecutor in this ease. It does appear, however, that the Fourth District, in dictum, has condemned anticipatory rehabilitation upon the grounds that it not only “scramble[s] the orderly procedure laid out by the Florida Rules of Evidence, but it robs the defense counsel of an important strategic tool used in cross-examination, that of impeachment of a witness through the use of prior inconsistent statements.” Ryan v. State, 457 So. 2d 1084, 1092 (Fla. 4th DCA 1984). We do not subscribe to our sister court’s view. We find adequate support for our position in analogous circumstances. See United States v. Hedman, 630 F. 2d 1184, 1198 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); United States v. Medical Therapy Sciences, Inc., 583 F. 2d 36, 39-40 (2d Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); Sneed v. State, 397 So. 2d 931, 933 (Fla. 5 D.C.A. 1981).

The appellant pins his attack upon the prosecutor’s interrogation of McBride to section 90.608, Florida Statutes, asserting that the questions and answers based upon McBride’s prior inconsistent statements constituted impeachment outside the statute’s boundaries. We certainly do not quarrel with the principle codified in section 90.608(2). Had the challenged interrogation of McBride been intended to attack his credibility, it would have been improper in the absence of McBride’s manifesting testimonial hostility during his appearance as a witness on behalf of the state. We do not, however, perceive the prosecutor’s questions and McBride’s explanation of the reason for his earlier inconsistent statements to be impeachment. Indeed, it is evident the state was seeking to enhance or shore up McBride’s credibility by candidly disclosing that at an earlier time he had fabricated the story that Bell was not involved in the crime.

In reaching our decision, we do not ignore the fact, seemingly deemed significant in Ryan, that anticipatory rehabilitation does in some measure diminish a defense attorney’s opportunity to shock the jury with the witness’ prior inconsistent statements. But, it did not “rob” Bell’s attorney of the ability to pursue the inconsistencies in an attempt to undercut the quality of McBride’s testimony. On balance, the rehabilitative inquiry undertaken during McBride’s direct examination, rather than upon redirect questioning, did not alter the totality of the testimony heard by the jury nor did it impair the jury’s task of determining the truth. Indeed, our review of McBride’s cross examination reveals comprehensive exploration into the circumstances leading up to and terminating in McBride’s initial sworn statement. We find no prejudice to the appellant flowing from the anticipatory rehabilitation of McBride.

Affirmed.

GRIMES, A.C.J., and SCHEB, J., concur.


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Citator

Cited By

  • 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. Be…
  • Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
    …ors, Grant, in connection with his prior inconsistent testimony. It is evident from the record that the state was not seeking to impeach Grant, but rather to bolster his credibility by revealing his earlier inconsistent statements. In Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985), we sanctioned that form of trial strategy, and found it not offensive to section 90.608, Florida Statutes. Affirmed. GRIMES, A.C.J., and SCHEB, J., concur.…
  • 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 mistrial was declared at defendant’s first trial and he was retried. At the first trial a…

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