RAMON GARCIA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ramon Garcia appealed his robbery and firearm possession conviction, arguing that the trial court erred by excluding a prior inconsistent statement used to impeach a state witness and by allowing testimony about Garcia's invocation of his right to silence. The appellate court found both errors reversible and reversed the conviction for a new trial.
The appellate court held that the trial court erred on both points. Once a proper predicate was established for impeachment with a prior inconsistent statement, any discrepancies concerning the statement's content or translation affected the weight of evidence, not its admissibility. Additionally, testimony regarding the defendant's invocation of his right to silence violated the Fifth Amendment protection against self-incrimination and constituted fundamental error warranting reversal.
[1] A proper predicate must be established before a witness can be impeached with a prior inconsistent statement, including calling the witness's attention to the statement a…
[2] Discrepancies concerning the content or translation of a prior inconsistent statement relate to the weight of the evidence, not its admissibility, once a proper predicate…
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Join FLexlaw to unlock all legal intelligence“In order for one to impeach a witness with a prior inconsistent statement, a predicate must first be established by calling the attention of the witness to be impeached to the allegedly contradictory statements and to the occasion when it is alleged said statements were made.”
Establishes the procedural requirement for impeachment and what must occur before a prior inconsistent statement can be admitted
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Join FLexlaw to unlock all legal intelligenceGarcia was convicted of robbery and unlawful possession of a firearm during the commission of a felony. At trial, the defense sought to impeach a stat…
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HENDRY, Chief Judge.
Appellant, defendant below, appeals his conviction and sentence for robbery and unlawful possession of a firearm during the commission of a felony, in violation of Sections 812.13 and 790.07, Florida Statutes (1975), respectively.
In seeking a reversal of his conviction and sentence, appellant has raised two points on appeal. Firstly, appellant contends that the trial court erred in refusing to allow defense counsel to impeach the testimony of a state witness with a prior inconsistent statement. Secondly, appellant contends that the trial court erred in denying a motion for mistrial where the state elicited testimony from a police officer which established that appellant had exercised his right to remain silent.
For the following reasons, we believe that both points have merit and reverse.
In order for one to impeach a witness with a prior inconsistent statement, a predicate must first be established by calling the attention of the witness to be impeached to the allegedly contradictory statements and to the occasion when it is alleged said statements were made. In addition, opportunity must be given the witness to examine, explain, confess, or deny such contradictory statements. Hancock v. McDonald, 148 So. 2d 56 (Fla. 1st DCA 1963); Urga v. State, 104 So. 2d 43 (Fla.2d DCA 1958). A careful review of the record demonstrates that such a proper predicate was in fact established.
In excluding the prior inconsistent statement from evidence, the trial judge was of the opinion that the interpreter’s translation of said statement from Spanish to English was “suspect.” Such opinion was apparently based upon both the witness’s failure to recall making part of the statement offered as evidence and the fact that the translator was employed by the Office of the Public Defender. It is our opinion, however, that once the proper predicate was established by the defense, 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 after being warned of his Miranda rights appellant said that “he didn’t want to make a statement without his attorney being present.” Clearly, such a comment concerning appellant’s silence violated appellant’s fifth amendment safeguard to be free from self-incrimination and amounted to fundamental error, warranting reversal. Bennett v. State, 316 So. 2d 41 (Fla.1975); Jones v. State, 200.So. 2d 574 (Fla.3d DCA 1967).
Accordingly, after carefully reviewing the record, briefs and arguments of counsel, we have concluded that reversible error has been demonstrated. Therefore, for the reasons stated above, appellant’s conviction and sentence is reversed and remanded for new trial.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kimble v. State, 537 So. 2d 1094 (Fla. 2d DCA 1989)…edicate for impeachment by prior inconsistent statement, the witness must be advised of the substance of the prior inconsistent statement, the time and place the statement was made, and the person to whom the statement was made. See Garcia v. State, 351 So. 2d 1098 (Fla. 3d DCA 1977), cert. denied, 361 So. 2d 835 (Fla.1978). See also, § 90.614(2), Fla.Stat. (1987). Sub ju-dice, the appellant’s attorney had asked the witness if she recalled giving a deposition at his office and the persons present at such depos…
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ST. Azile v. King Motor Ctr., Inc., 407 So. 2d 1096 (Fla. 4th DCA 1982)…ched to the allegedly contradictory statements and to the occasion when it is alleged said statements were made. In addition, opportunity must be given the witness to examine, explain, confess, or deny such contradictory statements. Garcia v. State, 351 So. 2d 1098 (Fla. 3d DCA 1977). These procedures were not followed in this case. We conclude the result of the above errors requires reversal and a new trial. Counsel initially made grossly improper statements before the jury as to the witness’s credibility an…
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Jones v. State, 418 So. 2d 430 (Fla. 3d DCA 1982)…robbery because the defense was denied the opportunity to lay the proper predicate for impeachment by prior inconsistent statement. § 90.608(1)(a), Fla. Stat. (1979); Henderson v. State, 155 Fla. 487, 20 So. 2d 649, 651 (Fla.1945); Garcia v. State, 351 So. 2d 1098 (Fla. 3d DCA 1977), cert. denied, 361 So. 2d 835 (Fla.1978). Reversed and remanded for a new trial.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Hancock v. Morton and Thelma S. McDONALD and William Wilmer Frost, Jr., 148 So. 2d 56 (Fla. 1st DCA 1963)
- Diamante Urga v. State, 104 So. 2d 43 (Fla. 2d DCA 1958)
- Epps v. Great S. Truck Co., 104 So. 2d 43 (Fla. 1st DCA 1958)
- Walter v. State, 272 So. 2d 180 (Fla. 3d DCA 1973)
- Moss v. State, 272 So. 2d 180 (Fla. 3d DCA 1973)