ANTHONY COLUNTINO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Anthony Coluntino was convicted of burglary with assault and aggravated assault, but the Florida appellate court reversed and remanded for a new trial because the trial court improperly admitted the victim's prior consistent statement as impeachment evidence, which constituted inadmissible hearsay that was highly prejudicial when the victim's credibility was the crucial issue.
The court reversed the conviction and remanded for a new trial, holding that the prior consistent statement was inadmissible hearsay because it was made after the crime and after the victim had a motive for lying, and therefore did not qualify for the exception allowing prior consistent statements to rebut charges of improper influence or fabrication. The admission was not harmless error because the victim's credibility was the crucial issue for the jury.
[1] Evidence of a witness's prior consistent statement is generally inadmissible hearsay, offered to impermissibly bolster trial testimony.
[2] A prior consistent statement is admissible to rebut a charge of improper influence, motive, or recent fabrication, provided it was made before the existence of facts indi…
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Establishes the general rule prohibiting prior consistent statements and the narrow exception for rebutting charges of improper influence or fabrication.
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Join FLexlaw to unlock all legal intelligenceJames Murphy, the alleged victim, gave two statements after Coluntino's arrest: one to his neighbor immediately after the incident (which the neighbor…
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PER CURIAM.
The defendant, Anthony Coluntino, appeals his conviction for burglary of a dwelling with assault and aggravated assault. We reverse and remand for a new trial.
James Murphy, the alleged victim, gave two statements after the defendant was arrested. The first statement was given to his neighbor immediately after the incident. The neighbor wrote down what Murphy told her happened. The second statement was a statement written by Murphy for the police. The victim wrote this statement after he spoke to an attorney and was advised to give the police a written statement.
On cross examination, defense counsel used the statement dictated to his neighbor to impeach Murphy’s trial testimony. On redirect, the state introduced, over the defendant’s objection, the prior consistent statement which Murphy gave to the police the day after the incident.
At the conclusion of the state’s case, the defendant filed a motion for judgment of acquittal. The trial court denied the motion as to all counts, except the sexual battery count, which was reduced to exposure of sexual organs. The jury found the defendant guilty of burglary with an assault and of aggravated assault. The jury found the defendant not guilty of robbery and of exposing sexual organs. The jury was unable to reach a verdict as to the kidnapping and battery counts, and the court declared a mistrial as to those counts. The trial court declared the defendant a habitual offender and sentenced him to seventy-five years on the burglary count and ten years on the assault count. The sentences were to run concurrently. The defendant appealed.
The defendant contends that the trial court erred in admitting over defense objection a prior consistent statement made by Murphy where such testimony was inadmissible hearsay. We agree.
It is well established that evidence of the prior consistent statement of a witness is inadmissible as an impermissible 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); Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991); Holliday v. State, 389 So. 2d 679 (Fla. 3d DCA 1980), unless the prior consistent statement is offered “to rebut an express or implied charge against [the declarant] of improper influence, motive, or recent fabrication.” Section 90.801(2)(b), Fla.Stat. (1991). In order to fall under the exception, the prior consistent statement must have been made “before the existence of the facts said to indicate an improper influence.” Lazarowicz v. State, 561 So. 2d 392, 393 (Fla. 3d DCA 1990).
The statement Murphy gave to the police was a prior consistent statement which does not come under the foregoing exception because the statement was made after the crime had terminated and after Murphy had a motive for lying about what had happened. Accordingly, the statement was inadmissible hearsay under the statute.
The improper introduction of a prior consistent statement cannot be considered harmless error where the credibility of the state’s only eyewitness, Murphy, was the crucial issue which the jury had to resolve. Reyes, 580 So. 2d at 309; Lazarowicz, 561 So. 2d at 392; Preston v. State, 470 So. 2d 836 (Fla. 2d DCA 1985). See generally State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The admission of the hearsay testimony in this case was highly prejudicial. Accordingly, we reverse the defendant’s conviction and remand for a new trial.
Reversed and remanded.
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Balduino Cortes v. State, 670 So. 2d 119 (Fla. 3d DCA 1996)…end arose at the time of her arrest.4 Thus, the trial court erred in admitting the taped statement because the statement was not made prior to the time the motive to lie existed. In this regard, we find this case is controlled by Coluntino v. State, 620 So. 2d 244, 245 (Fla. 3d DCA 1993) (holding that a prior consistent statement is not admissible where the statement was made after the crime had terminated and victim already had a motive to lie); LeBlanc v. State, 619 So. 2d 1021, 1022 (Fla. 3d DCA 1993) (hol…
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Little Bridge Marina, Inc. v. Jones Boat Yard, Inc., 673 So. 2d 77 (Fla. 3d DCA 1996)…ts of the facts, it was reversible error to allow the appellee’s trial attorney to use Gustinger’s past career as a criminal defense attorney as a form of impeachment. Dempsey v. Shell Oil Co., 589 So. 2d 373 (Fla. 4th DCA 1991); Coluntino v. State, 620 So. 2d 244 (Fla. 3d DCA 1993). These statements by appellee’s attorney were not only inappropriate, but they were also legally immaterial and irrelevant to the case. Furthermore, the statements cannot be condoned by this court as a form of impeachment. La Rein…
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Lara v. State, 868 So. 2d 1224 (Fla. 3d DCA 2004)
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Van Gallon v. State, 50 So. 2d 882 (Fla. 1951)
- Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990)
- Custer v. State, 159 Fla. 574 (Fla. 1947)
- Preston v. State, 470 So. 2d 836 (Fla. 2d DCA 1985)
- Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991)
- Ohio Cas. Grp. v. Parrish, 389 So. 2d 679 (Fla. 3d DCA 1980)
- Holliday v. State, 389 So. 2d 679 (Fla. 3d DCA 1980)