FREDDIE LEROY KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelly was arrested near a burglary scene and made incriminating statements to police. At trial, the state impeached Kelly's credibility by introducing evidence of his prior convictions involving dishonesty under Florida's hearsay impeachment rule. The court affirmed the admission of the impeachment evidence.
The court held that the prior convictions were properly admissible under Florida Statute section 90.806(1) to impeach the credibility of Kelly's station-house statements, which constituted hearsay. When a defendant elicits his own exculpatory statements into evidence, he runs the risk of having those statements impeached by felony convictions.
[1] The statutory rule of completeness applies only when a writing or recorded statement, or a part thereof, is introduced into evidence.
[2] A defendant is subject to impeachment under section 90.806(1) when the defendant introduces hearsay exculpatory statements through cross-examination.
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Join FLexlaw to unlock all legal intelligence“When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”
States the foundational rule under Florida Statute section 90.806(1) permitting impeachment of a declarant's credibility through evidence that would be admissible if the declarant testified
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Join FLexlaw to unlock all legal intelligenceKelly was caught after a chase near the scene of a business burglary and made incriminating statements to a police interrogating officer at the statio…
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FARMER, C.J.
Defendant, who was caught after a chase near the scene of a burglary of a business, later made incriminating statements to an interrogating officer at the police station. Defendant pleaded not guilty and went to trial. From his opening statement, his defense was essentially that he was an innocent man without a place to stay who was caught in the circumstances of being at the wrong place at the wrong time.
At trial, the state adduced his station-house statements through the testimony of the interrogating officer and on cross-examination of the officer defendant elicited additional statements he made to the officer. As part of its case in chief, the state then offered evidence of prior convictions involving dishonesty. The state relied on section 90.806(1), saying that the convictions impeached defendant’s credibility as a declarant and addressed the self-serving nature of part of his declarations. We agree with the state that it was proper to admit the convictions under section 90.806.
Section 90.806(1) provides:
“When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”
§ 90.806(1), Fla. Stat. (2003). We previously confronted similar impeachment of a defendant’s pretrial statements under sec tion 90.806 in Llanos v. State, 770 So. 2d 725 (Fla. 4th DCA 2000). In affirming the admission of impeachment evidence showing that the declarant-defendant was on probation from a prior conviction when he made the statements, we said:
“While the fact that a defendant is on probation is not usually admissible for impeachment, the testimony elicited by defense counsel on cross-examination suggested that appellant did not want the victim to notify the police because he was remorseful, he loved her, and he wanted her to resume their relationship. An equally plausible reason that would cast doubt on appellant’s motivation and credibility is that appellant wanted the victim to remain silent about the battery because he was on probation and his arrest could lead to the revocation of his probation.”
770 So. 2d at 726.
In this case during cross examination of the same witness, defendant also elicited the same statements, as well as other statements made during the same interrogation. His purpose was to show that in context the entire interrogation was exculpatory. Section 90.806 allows this specific use of such impeachment evidence. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Fedekal Evidence § 806.04(2)(b) (Joseph M. McLaughlin ed., 2d ed. 2002) (“A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions.”), concerning the functionally identical federal evidence provision.
AFFIRMED.
KLEIN and SHAHOOD, JJ., concur.
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Citator
Cited By (11 total)
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Huggins v. State, 889 So. 2d 743 (Fla. 2004)…District Court of Appeal holdings that section 90.806 permits the introduction of a defendant’s felony convictions when the defendant elicits his or her own exculpatory, hearsay statement through another [*756] witness at trial. See Kelly v. State, 857 So. 2d 949 (Fla. 4th DCA 2003); Werley v. State, 814 So. 2d 1159 (Fla. 1st DCA 2002); Llanos v. State, 770 So. 2d 725 (Fla. 4th DCA 2000). Two of those decisions cite the following treatise passage concerning the functionally identical federal evidence provisi…1 / 2
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Moore v. State, 943 So. 2d 296 (Fla. 1st DCA 2006)…(2005). When a defendant successfully introduces his hearsay statements into evidence, the credibility of the declarant may be attacked just as if the declarant had testified as a witness. See § 90.806(1), Fla. Stat. (2005); see also Kelly v. State, 857 So. 2d 949, 950 (Fla. 4th DCA 2003) (allowing impeachment with prior criminal record [*298] because defense counsel, on cross-examination, elicited exculpatory statements defendant had made to police officer); Werley v. State, 814 So. 2d 1159, 1163 (Fla. 1st D…
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Arselio Gonzalez v. State, 948 So. 2d 877 (Fla. 4th DCA 2007)…nothing to do with any other factor in this case.” A non-testifying defendant who brings out his or her own exculpatory statements through another witness, “runs the risk of having those statements impeached by felony convictions.” Kelly v. State, 857 So. 2d 949, 950 (Fla. 4th DCA 2003) (citation omitted). See also Fisher v. State, 924 So. 2d 914 (Fla. 5th DCA 2006)(citing Huggins v. State, 889 So. 2d 743 (Fla.2004)); Llanos v. State, 770 So. 2d 725 (Fla. 4th DCA 2000); Werley v. State, 814 So. 2d 1159 (Fla…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arius J. Llanos v. State, 770 So. 2d 725 (Fla. 4th DCA 2000)