JACK L. WALTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in allowing the State to impeach the mother's testimony with a prior inconsistent statement, even though she claimed not to remember its substance.
[1] A party may impeach a witness with prior inconsistent statements, even if the witness claims not to remember the statement, provided the witness acknowledges making a pri…
[2] Testimony regarding prior physical punishment of a child is relevant to a charge of manslaughter arising from the child's death.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of manslaughter. On appeal, he argued the trial court erred in allowing the State to impeach the victim's mother with a pr…
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The appellant was found guilty by a jury of manslaughter in the death of his minor child. The evidence demonstrated that the victim had been beaten and that death resulted from a blow to the abdomen. On this appeal, the appellant does not challenge the sufficiency of the evidence to support the jury’s verdict.
The points on appeal urge error because the trial court allowed the State to impeach the mother’s testimony by using a statement given to the investigating officer. It is argued first that “the trial court erred in permitting an attempt to impeach a witness by inconsistent statements in that no proper predicate was established and the statement concerned matters which were collateral and irrelevant.”
The mother was called as a witness by the State for the limited purpose of identifying the deceased.1 The defense proceeded on cross-examination to bring out testimony favorable to the defense. The State objected and the trial court properly declared the witness a defense witness. Upon cross-examination, the State brought out that the mother had given a statement to the investigating officer on the day after the baby’s death. The mother testified that she was in shock2 and did not remember the substance of her statement to the officer.
The appellant argues that some of the questions asked as a predicate to the impeachment of the witness were irrelevant or concerned collateral matters.3 Specifically, the appellant refers to questions as to physical “punishment” of the baby on days previous to the day on which the baby died. Certainly such testimony was relevant, and *182since no motion to strike the testimony was made, the appellant has no standing to now urge that the cross-examination should not have been allowed to stand as a predicate for impeachment. Cf. Mahone v. State, Fla.App.1969, 222 So.2d 769.
Furthermore, appellant argues that the impeachment was improper pursuant to the holding in Rankin v. State, Fla.1962, 143 So.2d 193, because the witness stated that she did not remember the prior statement. In the Rankin decision, which differs factually from the case at bar, several witnesses were called by the court. One of the witnesses stated that he was ignorant of the crime, did not remember making a statement, and could not tell whether the signature at the bottom of the statement was his own. It is worthy of note that the Rankin case has been significantly distinguished in Sutton v. State, Fla.App. 1970, 239 So.2d 644. In Sutton, as in the case at bar, the witness acknowledged a prior statement, but offered an explanation as to why the statement was inconsistent. Both statements were considered by the jury. The court found this procedure to be correct under the rule set out in Brown v. State, 91 Fla. 682, 108 So. 842 (1926).
In the case at bar, the witness remembered making a statement while under oath, remembered that she had previously examined it, and remembered acknowledging it to the State. As in Sutton, supra, the witness endeavored to explain away the inconsistencies. The evaluation of the witness’ testimony was properly to be resolved by the jury.
Lastly, appellant urges that the trial court erred in failing to instruct the jury at the time of the admission into evidence of the impeaching statements that the statements were admitted solely for impeachment and not as substantive testimony. Undoubtedly, such an instruction is proper and should be given. See Slade v. United States, 267 F.2d 834 (5th Cir. 1959). In the instant case, the instruction was given although it was not directly and forcefully given.4 If the defense were dissatisfied with the instruction it could have asked for and would have undoubtedly received a more direct and forceful instruction. The appellant was apparently satisfied because the subject was not subsequently mentioned until this appeal. Under these circumstances, the appellant has not shown reversible error. See Dupree v. State, Fla.App. 1967, 195 So.2d 1.
The judgment and the sentence are affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nowlin v. State, 346 So. 2d 1020 (Fla. 1977)…such explanations as he may desire. Brown v. State, 46 Fla. 159, 35 So. 82 (1903); Rowe v. State, 128 Fla. 394, 174 So. 820 (1937); Bright v. State, 250 So. 2d 10 (Fla.3d DCA 1971); Whitley v. State, 265 So. 2d 99 (Fla.3d DCA 1972); Walter v. State, 272 So. 2d 180 (Fla.3d DCA 1973); Jones v. State, 281 So. 2d 398 (Fla.2d DCA 1973); see Florida Evidence Code, Section 90.614(2) (effective July 1, 1977); Berger et al., Evidence, 30 U. Miami L.Rev. 561, 594 (1976). As required in the majority opinion, the defend…
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Mazzara v. State, 437 So. 2d 716 (Fla. 1st DCA 1983)…applied before the adoption of the Florida Evidence Code to prior inconsistent statements admissible, as here, for impeachment purposes, but inadmissible as substantive evidence. Johnson v. State, 249 So. 2d 470 (Fla. 3rd DCA 1971); Walter v. State, 272 So. 2d 180 (Fla. 3rd DCA 1973). It is apparent, however, from those cases and from the provisions of Section 90.107 that a party must request a limiting instruction in order to be entitled to assert error by reason of the court’s failure to so instruct. Appell…
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Garcia v. State, 351 So. 2d 1098 (Fla. 3d DCA 1977)…ver, that once the proper predicate was established by the defense, [*1100] any discrepancy concerning either the statement’s content or the translation of same related to the weight of the evidence and not to its admissibility. See Walter v. State, 272 So. 2d 180 (Fla.3d DCA 1973). As such, we believe the court erred in not admitting the prior inconsistent statement into evidence. As for appellant’s second point, the record reveals that upon being questioned by the state, the arresting officer stated that a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Funk v. United States, 290 U.S. 371 (U.S. 1933)
- Rankin v. State, 143 So. 2d 193 (Fla. 1962)
- Starke v. State, 49 Fla. 41 (Fla. 1905)
- Truby Clarence Slade v. United States, 267 F.2d 834 (5th Cir. 1959)
- Mahone v. State, 222 So. 2d 769 (Fla. 3d DCA 1969)
- Adams v. State, 54 Fla. 1 (Fla. 1907)
- Turner v. Shelfer, 91 Fla. 682 (Fla. 1926)
- Brown v. State, 108 So. 842 (Fla. 1926)
- Dupree v. State, 195 So. 2d 1 (Fla. 2d DCA 1967)
- Sutton v. State, 239 So. 2d 644 (Fla. 1st DCA 1970)