RONALD HENRY POITIER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1974-11-19
No. 74-494
Before HENDRY, HAVERFIELD and NATHAN, JJ.
303 So. 2d 409 Florida District Court of Appeal, Third District (1974) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ronald Poitier was convicted of entering without breaking and grand larceny after a bench trial. On appeal, he challenged the trial court's refusal to permit cross-examination of the arresting officer as a hostile witness and to use a police report for impeachment, but the appellate court affirmed the conviction and sentence.


Holding

The trial court did not err in either respect. Defense counsel cannot impeach his own witness unless the witness proves to be hostile, meaning the witness was called with the expectation of favorable testimony but proved unwilling or adverse. The officer was not called with such expectation, so he could not be impeached on direct examination. Additionally, the trial court properly exercised its discretion in determining whether to allow use of police reports for impeachment.


Headnotes

[1] A party may not impeach the credibility of its own witness unless the party is surprised or entrapped by the witness's testimony, and the testimony is prejudicial to the…

[2] A witness is considered "hostile" when called with the expectation of favorable testimony, but proves unwilling or adverse, surprising the calling party.

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Key Quotes

“The general rule in Florida and throughout the United States is that a party may not attack or impeach the credibility of his own witness.”

Establishes the fundamental principle governing impeachment of one's own witnesses.

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Facts & Procedural History

Poitier was charged with breaking and entering and grand larceny. He was tried without a jury after pleading not guilty and was convicted of entering …

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Opinion of the Court
NATHAN, Judge.

NATHAN, Judge.

The defendant was charged by information with breaking and entering and grand larceny, tried non-jury after a plea of not guilty, and convicted of entering without breaking and grand larceny and sentenced to imprisonment in the state penitentiary for three years on the first count and two years on the second count, to run consecutively.

On appeal, the defendant contends that the court erred (1) in refusing to allow defense counsel to call the arresting officer as a hostile witness and (2) in refusing to allow the police report to be used for impeachment purposes. After careful review of the record and the briefs, we cannot agree with either contention.

The arresting officer was initially called as a state’s witness, and defense counsel was permitted to cross-examine and impeach him without restriction. After the state rested, defense counsel attempted to call the same officer as a “hostile” defense witness, “. . . to show that his testimony at deposition is inconsistent with his testimony in court.” The general rule in Florida and throughout the. United States is that a party may not at tack or impeach the credibility of his own witness. Johnson v. State, Fla.App. 1965, 178 So. 2d 724; Jones v. State, Fla.App. 1973, 273 So. 2d 8; § 90.09, Fla.Stat. One seeking to impeach his own witness can do so only when the party producing the witness has been surprised or entrapped by the statements made by the witness from the stand, and the testimony is not only not that which the producing party expected, but is, in fact, prejudicial to his case. Foremost Dairies, Inc., of South v. Cutler, Fla.App.1968, 212 So. 2d 37. In other words, one can only impeach his own witness when such witness proves to be a “hostile” witness.

A witness becomes “hostile” when he is called with the expectation that he will give testimony favorable to the calling party, but who thereafter proves to be unwilling or adverse, to the complete surprise of the calling party. Foremost Dairies, Inc., of South v. Cutler, supra. When defense counsel attempted to call the officer as a defense witness, it was not with the expectation of favorable testimony; by his own admission, he was attempting to call the witness for impeachment. Not qualifying as a “hostile” witness, the officer could not have been impeached by defense counsel on direct examination, and, therefore, the judge properly refused to permit defense counsel to call him.

As to the appellant’s second point on appeal, we find no merit in the contention that the trial court erred in not allowing the police report to be used for impeachment purposes. The record clearly discloses that defendant’s counsel had every opportunity to cross-examine and impeach the officer when he was produced as the state’s witness. In fact, the court did permit impeachment by use of the police report in addition to any other matters, whether admissible or not. Assuming ar-guendo the defendant is accurate in his assertion that the judge did not allow the police report to be used for impeachment purposes, there is authority to support this ruling. In State v. Johnson, Fla. 1973, 284 So. 2d 198, 200, the Supreme Court opines that normally mere negative use of police reports for impeachment should not be allowed, however, production and use in evidence of police reports may be allowed in the sound discretion of the court.

Therefore, for the reasons above stated, the conviction and sentence are hereby affirmed.

Affirmed.


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Citator

Cited By

  • Aline Jackson v. State, 369 So. 2d 1029 (Fla. 3d DCA 1979)
    …ative hearings in intra-departmental investigations of the conduct of police officers for the reasons set out in W. B. and D. B. v. State, 343 So. 2d 928 (Fla. 3d DCA 1977). See also State v. Johnson, 284 So. 2d 198 (Fla.1973), and Poitier v. State, 303 So. 2d 409 (Fla. 3d DCA 1974). Further, we hold that by conducting the in-camera inspection, the court fully discharged its responsibility in seeing that no “Brady” material was contained in' the statements of the police officer. Appellant’s second point, ur…
  • Lynde R. Johnson v. Ind. Ins. Co., 349 So. 2d 854 (Fla. 3d DCA 1977)
    …PER CURIAM. Affirmed. See Foremost Dairies, Inc., of the South v. Cutler, 212 So. 2d 37 (Fla. 4th DCA 1968); Poitier v. State, 303 So. 2d 409 (Fla. 3d DCA 1974); Klepper v. J. C. Penney Company, Inc., 340 So. 2d 1170 (Fla. 4th DCA 1976).…

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