ALEJANDRO FERNANDEZ-CARBALLO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alejandro Fernandez-Carballo appealed his conviction for unarmed robbery, challenging the trial court's evidentiary rulings on hearsay statements and its denial of a continuance/mistrial motion. The appellate court affirmed the conviction, finding no error in the trial court's exclusion of inadmissible hearsay and discretionary denial of continuance.
The trial court committed no error. The victim's oral statements to police were inadmissible hearsay because the defendant failed to lay proper foundation by confronting the victim with specific inconsistent statements during cross-examination and failed to proffer any actual inconsistency. The trial court did not abuse its discretion in denying continuance and mistrial, and any error in admitting the deposition was invited by the defense.
[1] Prior inconsistent statements of a witness are inadmissible hearsay unless the witness is confronted with the specific statement and asked if it was made, thereby laying…
[2] A party seeking to introduce prior inconsistent statements must proffer that the witness made specific statements inconsistent with trial testimony, rather than hoping in…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The victim was never asked on cross examination by the defendant whether she had made a specific oral statement to the police which was allegedly inconsistent with her trial testimony. Instead, the defendant merely questioned her as to whether she had talked to the police concerning the alleged robbery; she was never confronted with any specific inconsistent statement she had made to the police or asked whether she had, in fact, made such statements.”
Establishes the foundational requirement for impeaching a witness with prior inconsistent statements under Florida law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFernandez-Carballo was convicted of unarmed robbery by jury verdict. At trial, the defendant sought to introduce through police officers the victim's …
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PER CURIAM.
This is an appeal by the defendant Alejandro Femandez-Carballo from a final judgment of conviction and sentence for unarmed robbery which was entered upon an adverse jury verdict. We affirm.
First, we reject the defendant's contention that the trial court erred in sustaining the state’s objections to certain questions propounded by the defendant to two police officers. The defendant sought to elicit from these witnesses the victim’s oral statements to the police concerning the events surrounding the alleged robbery. The trial court correctly sustained the state’s objections to these questions as the evidence sought to be elicited constituted inadmissible hearsay. The defendant argues that the subject oral statements were admissible as constituting prior inconsistent statements which impeached the victim’s trial testimony. We disagree for two reasons.
(1) The victim was never asked on cross examination by the defendant whether she had made a specific oral statement to the police which was allegedly inconsistent with her trial testimony. Instead, the defendant merely questioned her as to whether she had talked to the police concerning the alleged robbery; she was never confronted with any specific inconsistent statement she had made to the police or asked whether she had, in fact, made such statements. This being so, the defendant failed to lay the proper foundation for the subsequent introduction of such statements as required by Florida law. See Calhoun v. State, 502 So. 2d 1364, 1365 (Fla. 2d DCA 1987); Wright v. State, 427 So. 2d 326, 328 (Fla. 3d DCA 1983); § 90.614(2), Fla.Stat. (1989).
(2) Moreover, the defendant made no proffer that the victim had ever made any specific statements to the police which were inconsistent with her trial testimony. Instead, the defendant sought to bring out the entire oral statements made by the victim to the police in the hope, no doubt, that some inconsistencies might develop. Given the failure to proffer any inconsistency between the victim’s trial testimony and her oral statements to the police, the trial court quite properly precluded the defendant from eliciting any such oral statements as the same constituted inadmissible hearsay. See A. McD. v. State, 422 So. 2d 336, 337 (Fla. 3d DCA 1978); § 90.104(1)(b), Fla.Stat. (1989); cf. Silveira-Hernandez v. State, 495 So. 2d 914 (Fla. 3d DCA 1986).
Second, we reject the defendant’s argument that the trial court erred in denying the defendant’s motion for a continuance or a mistrial when a police officer, subpoenaed by the defendant for trial, failed to honor the subpoena and appear in court to testify. No abuse of discretion is shown in such rulings. Jent v. State, 408 So. 2d 1024, 1028 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Holman v. State, 347 So. 2d 832, 836 (Fla. 3d DCA 1977), cert. denied, 354 So. 2d 981 (Fla.1978). Moreover, there is no merit to the defendant’s argument that the trial court erred in admitting in evidence a discovery deposition of the said police officer when the defense motions for a continuance and mistrial were denied. The defendant, not the state, offered such deposition in evidence and consequently any claimed error here was entirely invited. Jones v. State, 532 So. 2d 1337 (Fla. 3d DCA 1988); Stanley v. State, 357 So. 2d 1031, 1034 (Fla. 3d DCA), cert. denied, 364 So. 2d 891 (Fla.1978).
Finally, the defendant was given adequate written notice that he would be sentenced as an habitual offender. § 775.-084(3)(b), Fla.Stat. (1989).
Affirmed.
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Mills v. State, 681 So. 2d 878 (Fla. 3d DCA 1996)…reviewed defense counsel’s cross examination of LM on this point, it is clear she was never asked “whether she had made a specific oral statement to the police which was allegedly inconsistent with her trial testimony.” Fernandez-Carballo v. State, 590 So. 2d 1004, 1004-05 (Fla. 3d DCA 1991). Given defense counsel’s failure to lay a prop [*881] er foundation, the trial court properly barred Detective Oterino’s testimony on this point. In sum, the trial court’s ultimate ruling precluding Mills’ counsel from q…
Authorities Cited (13 total)
- Jent v. State, 408 So. 2d 1024 (Fla. 1981)
- Brown v. Fed. Election Comm'n, 457 U.S. 1111 (U.S. 1982)
- Oregon v. Newman, 457 U.S. 1111 (U.S. 1982)
- Stanley v. State, 357 So. 2d 1031 (Fla. 3d DCA 1978)
- Holman v. State, 347 So. 2d 832 (Fla. 3d DCA 1977)
- Cosme Rodriguez v. Fla. Parole & Prob. Comm'n, 422 So. 2d 336 (Fla. 1st DCA 1982)
- McD. v. State, 422 So. 2d 336 (Fla. 3d DCA 1982)
- Orange Cnty. v. Fuller, 502 So. 2d 1364 (Fla. 5th DCA 1987)
- Calhoun v. State, 502 So. 2d 1364 (Fla. 2d DCA 1987)
- Silveira-Hernandez v. State, 495 So. 2d 914 (Fla. 3d DCA 1986)