RONNIE CHARLES PUGH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ronnie Pugh was convicted of aggravated battery and robbery with a firearm based largely on witness William Cure's trial testimony that Pugh held a gun and ordered victims to the ground. The court reversed because the trial court erred in excluding Cure's prior inconsistent deposition testimony, where he said he did not see Pugh actively participating in or holding a gun during the robbery.
The trial court erred in excluding the prior inconsistent deposition testimony. Under Florida Statutes § 90.614(2), where a witness does not distinctly admit making a prior inconsistent statement during cross-examination, extrinsic evidence of that statement is admissible. The error was not harmless because Cure's testimony was critical to the state's case, and attacking his credibility could have affected the verdict.
[1] Extrinsic evidence of a witness's prior inconsistent statement is admissible if the witness does not distinctly admit to making the statement, even if the witness claims…
[2] A witness's claim of not remembering the questions or answers from a prior deposition does not constitute a distinct admission of the prior inconsistent statement.
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“Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.”
Establishes the legal standard for admitting prior inconsistent statements under Florida law; provides the framework for the court's holding.
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Join FLexlaw to unlock all legal intelligenceWilliam Cure gave a pretrial deposition in which he testified he identified Pugh as one of four men in a Winn Dixie store but did not see him actively…
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GODERICH, Judge.
In his pretrial deposition, William Cure testified that he identified the defendant as one of the four men in the Winn Dixie store, but that he did not see him actively participating in the robbery or holding a gun. At trial, however, William Cure changed his testimony and claimed that the defendant was directly involved in the robbery by holding a gun and ordering everybody to the ground.
The jury found the defendant guilty of aggravated battery with a firearm and of four counts of robbery with a firearm. The trial court adjudicated the defendant accordingly and sentenced him. The defendant appeals his conviction.
The defendant contends that the trial court erred in refusing to allow into evidence a portion of a pretrial deposition as a prior inconsistent statement to impeach William Cure, the key prosecution witness, on critical testimony. We agree.
Section 90.614(2), Florida Statutes (1991), provides:
Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.
During cross-examination, William Cure testified that he did not remember the questions he was asked nor the answers he gave during his deposition. He did not distinctly admit to making the prior inconsistent statement. Accordingly, under section 90.614(2), extrinsic evidence of this statement, which is contained in the transcript of the deposition testimony, is admissible. We find that the defendant should have been allowed to offer the inconsistent portions of William Cure’s deposition into evidence.
We cannot agree with the state’s contention that the error was harmless where William Cure was the only witness to claim that the defendant was directly involved in the robbery and holding a gun. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Arthiee People, the general merchandise manager, testified that she saw four men wearing heavy coats in the store. She identified the defendant as being one of the men in the store. Trevor Flowers also saw four men enter the store wearing big jackets. He never saw the defendant with a gun and never saw him rob anyone. He added that the defendant was a regular customer of the store and would not rob it. Because the testimony of William Cure was critical to the state’s case, any attack on his credibility could have affected the verdict, and thus the error must be considered harmful. McArthur v. Cook, 99 So. 2d 565 (Fla.1957); Fogel v. Mirmelli, 413 So. 2d 1204 (Fla. 3d DCA 1982).
Based on the foregoing, we reverse the defendant’s conviction and remand this case for a new trial.
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Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- McARTHUR v. Cook, 99 So. 2d 565 (Fla. 1957)
- Fogel v. Mirmelli, 413 So. 2d 1204 (Fla. 3d DCA 1982)