ALBERT SANTIAGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alberto Santiago was convicted of attempted second-degree murder and sexual battery based on a victim's prior inconsistent statements that she recanted at trial. The appellate court reversed the convictions and remanded for discharge, holding that the victim's recanted statements were insufficient evidence to sustain the convictions.
Prior inconsistent statements may be used for impeachment purposes only and cannot be considered as substantive evidence against a defendant. Therefore, the recanted statements were insufficient to sustain convictions on either charge, and the convictions are reversed and the defendant is discharged.
[1] A prior inconsistent statement of a witness, which has been recanted, cannot be used as substantive evidence to support a criminal conviction.
[2] Insufficient evidence to convict on a charge requires reversal of the conviction and remand for discharge of the defendant.
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Join FLexlaw to unlock all legal intelligence“such prior inconsistent statements may be used for impeachment but cannot be considered as substantive evidence against a defendant”
Establishes the primary legal principle that prior inconsistent statements cannot serve as substantive evidence in criminal cases
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Join FLexlaw to unlock all legal intelligenceMs. Oquendo, who became Santiago's wife by the time of trial, initially told police that Santiago choked her. At trial, she recanted and testified tha…
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COBB, Judge.
Santiago appeals his convictions for attempted second degree murder and sexual battery. Because there was insufficient evidence to convict the defendant on either charge, we reverse the convictions and remand for discharge.
The prosecution for attempted murder was predicated upon the original version of a choking incident given to the police by the victim, Ms. Oquendo,1 immediately after the incident. Prior to trial she recanted her original statement in regard to the nature of the choking and the events surrounding it, as well as her statement in regard to the alleged sexual battery. At trial, she testified that Santiago had briefly choked her in self-defense after she hit him with a broomstick and while she was choking him. The state’s medical expert testified that bruises on Oquendo’s neck were suggestive of her having been choked, but he was unable to say for how long or how hard she had been choked, and the choking could have lasted for only a few seconds.
In other words, the only evidence offered by the state to substantiate the charge of attempted murder against Santiago was the prior inconsistent statement by its own witness, Oquendo, and that is not enough. State v. Moore, 485 So. 2d 1279 (Fla.1986); Smith v. State, 379 So. 2d 996 (Fla. 5th DCA), cert, denied, 386 So. 2d 642 (Fla.1980). As we stated in Smith, such prior inconsistent statements may be used for impeachment but cannot be considered as substantive evidence against a defendant. Smith 379 So. 2d at 997.
Likewise, the only evidence of a sexual battery was Oquendo’s since recanted statement that the defendant had forced her to have sex. This prior inconsistent statement is inadequate to sustain the conviction. See, e.g., Moore.
While unnecessary to our disposition of this case, we additionally observe for the benefit of bench and bar that an error was committed in seating a juror against whom the defense had interposed a peremptory challenge. The prospective juror, Ms. Stone, had informed the court during voir dire that she worked for a law firm as a certified paralegal. Defense counsel exercised a peremptory challenge but the state asserted that the defense was simply attempting to exclude women from the jury. Defense counsel countered that she did not want someone on the jury with a strong legal background who could dominate the other jurors. Counsel pointed out that she had in fact struck a male lawyer for the same reason Stone was being challenged. The court, however, rejected the challenge and ordered that Stone be seated as a juror. The reason offered by the defense for the peremptory challenge was a legitimate, nondiscriminatory one and it was error for the trial court to overrule the challenge. See Wimberly v. State, 599 So. 2d 715 (Fla. 3d DCA 1992). A person with formal legal training is generally presumed to have analytical and forensic abilities that a lay person does not possess and thus could have a disproportionate influence on the deliberations. This status constituted a legitimate, “gender neutral” reason for the peremptory challenge. See, e.g., Betancourt v. State, 650 So. 2d 1021 (Fla. 3d DCA 1995).
REVERSED AND REMANDED FOR DISCHARGE OF THE DEFENDANT.
PETERSON, J., concurs.
GRIFFIN, J., concurs in part, dissents in part, with opinion.
. At the time of trial, Ms. Oquendo had become Mrs. Santiago, the defendant’s wife.
GRIFFIN, Judge,
concurring in part; dissenting in part.
I agree the evidence will not support the sexual battery conviction. Although a close question, I think the evidence is sufficient to sustain the attempted second degree murder conviction under the Moore test. I also do not believe the lower court’s ruling on the peremptory challenge issue should be second-guessed on this record.
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State v. Green, 667 So. 2d 756 (Fla. 1995)…the defendant ... violated the appellant’s sixth amendment right to confrontation and cross-examination. See Moore, 485 So. 2d at 1282 (Overton, J., concurring specially); Everett v. State, 530 So. 2d 413 (Fla. 4th DCA 1988). Cf. Santiago v. State, 652 So. 2d 485 (Fla. 5th DCA 1995) (where the only evidence offered [*761] by the state to substantiate the charge of attempted murder is the prior inconsistent statement of its own witness, the evidence is insufficient to support a conviction). In reaching our de…
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Dep't of Health & Rehabilitative Servs. v. M.B., 701 So. 2d 1155 (Fla. 1997)…s statement identifying Green had been so diminished by the child’s other testimony that we could not have sufficient confidence in the criminal conviction to allow it to stand. See also State v. Moore, 485 So. 2d 1279 (Fla.1986); Santiago v. State, 652 So. 2d 485 (Fla. 5th DCA 1995). Our rulings in Green and Moore were primarily concerned with the minimum standard of evidence required to sustain a criminal conviction and the potential miscarriage of justice that could occur if that standard was not maintain…
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Bryant Williams v. State, 714 So. 2d 462 (Fla. 3d DCA 1997)…statements” of the victim and her son. In the absence of any independent evidence of guilt, he posits, his convictions must be reversed. State v. Moore, 485 So. 2d 1279 (Fla.1986); Joyce v. State, 664 So. 2d 45 (Fla. 3d DCA 1995); Santiago v. State, 652 So. 2d 485 (Fla. 5th DCA 1995). The state initially responded that although the statements were, in fact, “prior inconsistent statements,” there was independent evidence of guilt, to-wit:' photographs of the victim’s physical injuries. These photographs, alon…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Florida BAR v. Greene, 485 So. 2d 1279 (Fla. 1986)
- Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995)
- Betancourt v. State, 650 So. 2d 1021 (Fla. 3d DCA 1995)
- Wimberly v. State, 599 So. 2d 715 (Fla. 3d DCA 1992)
- Horton v. State, 379 So. 2d 996 (Fla. 1st DCA 1980)
- Smith v. State, 379 So. 2d 996 (Fla. 5th DCA 1980)