CARLOS REYES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the admission of prior consistent statements and testimony bolstering the victim's credibility constituted reversible error.
[1] Evidence of a witness's prior consistent statements is inadmissible to bolster trial testimony.
[2] Testimony that a witness is truthful improperly intrudes upon the jury's role in determining credibility.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of sexual battery and simple battery. At trial, the victim testified, but the defense presented contradictory evidence, in…
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SCHWARTZ, Chief Judge.
Reyes was convicted of sexual battery and simple battery for the alleged digital penetrations of a twelve year old girl, C.H., who was a close friend of the defendant and his children. We reverse for a new trial.
At the trial, the victim specifically testified to the incidents of misconduct and there was medical testimony of damage to the child’s intimate area which was at least equivocal as to its derivation. On the other hand, Reyes’s young daughter, who was allegedly present when the acts took place, denied on the stand that they occurred. Reyes himself adamantly denied his guilt. In this context, we hold that the trial judge reversibly erred in admitting two classes of improper and prejudicial testimony:
1. Three witnesses, C.H.’s mother and stepfather, Mr. and Mrs. Sutton, and the investigating police officer were each allowed to recount at length that she had, prior to the trial, several times described the alleged offenses committed by Reyes entirely consistently with her testimony at the trial. There is no question that evidence of the prior consistent statements of a witness is inadmissible because it is an impermissible — and probably hearsay — attempt to bolster the credibility of trial testimony. Van Gallon v. State, 50 So. 2d 882 (Fla.1951); Custer v. State, 159 Fla. 574, 34 So. 2d 100 (1947); Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979). See generally Kopko v. State, 577 So. 2d 956, 960 n. 9 (Fla. 5th DCA 1991). As in several recent cases in which, like this one, the prior consistent statements were those of a victim whose credibility was directly in issue, it is clear that the admission of the testimony of these witnesses1 should not have been permitted.2, 3 Stamper v. State, 576 So. 2d 425 (Fla. 4th DCA 1991); Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990); Holliday v. State, 389 So. 2d 679 (Fla. 3d DCA 1980); Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979); accord Barnes v. State, 576 So. 2d 439 (Fla.. 4th DCA 1991); see also Lamb v. State, 357 So. 2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So. 2d 641 (Fla. 2d DCA 1977).
2. Both of the Suttons were repeatedly permitted to state that C.H. “would never lie” and was “a truthful child.” This testimony was clearly an impermissible intrusion into the role of the jury whose primary function it was to determine just that question of the victim’s credibility. Holliday, 389 So. 2d at 680-81; Lamazares v. Valdez, 353 So. 2d 1257 (Fla. 3d DCA 1978); see Francis v. State, 512 So. 2d 280 (Fla. 2d DCA 1987); Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986), pet. for review dismissed, 507 So. 2d 588 (Fla.1987). As such, its reception into evidence constitutes another, independent basis for reversal.4 Finally, we cannot find that these errors, even considered individually, much less together, were harmless under the rule of State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Barnes, 576 So. 2d at 439; Lazarowicz, 561 So. 2d at 392; Holliday, 389 So. 2d at 679; cf. Anderson v. State, 574 So. 2d 87 (Fla.1991); Myles v. State, 580 So. 2d 71 (Fla. 3d DCA 1991). A new trial is therefore required.
Reversed and remanded.
. Our rulings make it unnecessary directly to address whether it was also error to admit the contents of the victim’s statement to the examining physician under section 90.803(4), Florida Statutes (1989). We caution, however, that, at the re-trial, the statement may be recounted only if, and to the extent that it was knowingly made for the purpose of and was pertinent to diagnosis or treatment. Consult State v. Ochoa, 576 So. 2d 854 (Fla. 3d DCA 1991); Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990); Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986); see also A.M. v. State, 574 So. 2d 1185, 1186-87 (Fla. 3d DCA 1991) (Baskin, J., specially concurring).
. The exception to this rule of inadmissibility, which arises in order to counter a claim of "improper influence, motive, or recent fabrication” against the witness, § 90.801(2)(b), Fla. Stat. (1989), does not apply here. This is because, while the defense did accuse C.H. of falsely testifying because she was jealous and bitter over another of the defendant’s daughters coming to live with him and thus interfering with their relationship, this fact, and thus the alleged motive to falsify, arose prior to any of the statements in question. Jackson v. State, 498 So. 2d 906 (Fla.1986); Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990).
. Section 90.803(23)(a), Florida Statutes (1989) does not apply because the child is over eleven years old.
. We reject the state’s contentions that the Sut-tons’ testimony was properly admitted under section 90.609(2), Florida Statutes (1989). That section permits only the admission of evidence of "character relating to truthfulness” by testimony “in the form of reputation.” The Suttons’ testimony was not of that nature. See Francis v. State, 512 So. 2d 280 (Fla. 2d DCA 1987). Likewise, we do not agree that the defendant’s general objection to such obviously impermissible testimony did not preserve the issue for appellate review. See § 90.104(l)(b), Fla.Stat. (1989).
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Cited By (14 total)
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Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)…versed and the case remanded for new trial. ZEHMER, J., concurs and SMITH, J., concurs in part. . The existence in the present case of the victim’s prior inconsistent statement is a primary distinguishing fact from those recited in Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991); Kopko v. State, 577 So. 2d 956 (Fla. 5th DCA 1991); and Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990). In each of those cases a "parade of witnesses” was allowed to testify as to previous statements of the child victims,…
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Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993)…ovide sufficient safeguards of reliability. If the case proceeds to trial, Detective Coxen may not testify before the jury that K.S. knew the difference between the truth and a lie. Tingle v. State, 536 So. 2d 202 [*1282] (Fla.1988); Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991). REVERSED and REMANDED for further proceedings consistent with this opinion. JOANOS and MINER, JJ., concur. . K.S. spoke to her father's live-in girlfriend, as well as her father and Detective Coxen, about the incident. . Rich…
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Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991)…Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979); Lamb v. State, 357 So. 2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So. 2d 641 (Fla. 2d DCA 1977). See Jenkins at 1021. See also Cook v. State, 528 So. 2d 1311 (Fla. 2d DCA 1988); Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991). Accordingly, we hold that the victim’s prior consistent statements testified to by Rogers, Edens and Black were inadmissible hearsay and served only to impermissibly bolster the victim’s credibility in front of the jury. Three o…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (22 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986)
- Jackson v. State, 498 So. 2d 906 (Fla. 1986)
- Anderson v. State, 574 So. 2d 87 (Fla. 1991)
- Van Gallon v. State, 50 So. 2d 882 (Fla. 1951)
- Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986)
- Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990)
- Custer v. State, 159 Fla. 574 (Fla. 1947)
- Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979)
- Brown v. State, 344 So. 2d 641 (Fla. 2d DCA 1977)