ROGER DEAN HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Dean Hill appealed his rape conviction, challenging the trial court's decision to allow the prosecutor to play a tape-recorded statement to a witness in front of the jury to refresh the witness's memory when the witness claimed to have no recollection of the incident. The appellate court reversed and remanded for a new trial, finding that while tape recordings may be used to refresh memory, they should be played outside the jury's presence to avoid prejudicial error.
The court held that while a witness's memory may be refreshed by reference to prior statements, error is committed when the contents of a statement are introduced as evidence in the presence of the jury where the witness testified to having no memory of the incident. The court found the error was not harmless in this case because the prosecutor's closing statements relied upon evidence adduced only through the playing of the tape.
[1] A prior statement may be used to refresh a witness's recollection, but not as substantive evidence.
[2] Prejudicial error may occur when the contents of a statement are introduced as evidence after a court witness claims no recollection of making the statement.
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Join FLexlaw to unlock all legal intelligence“A witness' memory may be jogged by reference to prior statements and a prior statement may be considered for impeachment purposes and not as substantive evidence.”
Establishes that prior statements have a proper limited use in refreshing memory
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Join FLexlaw to unlock all legal intelligenceAlan Carl McDonald, a witness present at the scene of the alleged rape that occurred on March 3, 1974, testified that he had absolutely no recollectio…
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BURNSTEIN, MIETTE K., Associate Judge.
This was an appeal from a conviction of appellant for a rape which allegedly occurred on March 3, 1974. Alan Carl McDonald, who was present at the scene during the incident was called as a court’s witness. During the examination of McDonald, the witness stated that he had absolutely no recollection of the incident in question and that he did not remember seeing appellant at the scene on the date in question.
The prosecutor, over strenuous objection by defense counsel, attempted to refresh the recollection of the witness by playing a tape recorded statement made by the witness in September, 1974. The tape was played in the full presence of the jury. The court subsequently instructed the jury that: “The tape itself was not introduced into evidence. The conversation on the tape was presented to refresh the memory of the court witness, and it should be so considered.” Defense counsel moved the trial court for a mistrial which motion was denied. This appeal followed.
A witness’ memory may be jogged by reference to prior statements and a prior statement may be considered for impeachment purposes and not as substantive evidence. Pitts v. State, 333 So. 2d 109 (Fla. 1st DCA 1976). However, prejudicial error may be committed when the contents of a statement are introduced as evidence where a court witness stated that he did not recall making the statement. Rankin v. State, 143 So. 2d 193 (Fla.1962). Furthermore, in Oliver v. State, 239 So. 2d 637 (Fla. 1st DCA 1970), the court held that error was committed where the court’s witness testified to having no memory of the incident and where the prosecution, under the guise of refreshing his recollection, read questions and answers to the witness from a prior statement. Although in Oliver, the error was felt to be harmless, this record does not so reflect. Prosecutor’s closing statements indicate reliance upon the evidence adduced only through the playing of the tape.
Many courts have indicated that the playing of such tapes can be permitted to refresh a witness’ memory — but that such procedure should be utilized outside the presence of the jury. U. S. v. McKeever, 271 F. 2d 669 (2d Cir. 1959); State v. Gonya, 107 R.I. 594, 268 A. 2d 729 (1970); Breeding v. Reed, 253 Iowa 129, 110 N.W. 2d 552 (1961).
Accordingly, we REVERSE and REMAND for new trial consistent with this opinion.
DOWNEY and DAUKSCH, JJ., concur.
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Citator
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Morton v. State, 689 So. 2d 259 (Fla. 1997)…in front of the jury in the course of refreshing the witness's memory. Rather, the witness should be shown the statement and asked if it refreshed the witness's recollection. See Auletta v. Fried, 388 So. 2d 1067 (Fla. 4th DCA 1980); Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978); Oliver v. State, 239 So. 2d 637 (Fla. 1st DCA 1970), quashed on other grounds, 250 So. 2d 888 (Fla.1971). We also reject the argument that the statements were properly admitted under the past recollection recorded exception to…
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Hawthorne v. State, 408 So. 2d 801 (Fla. 1st DCA 1982)…esses were presented and testified at length about her demeanor on the occasions when her statements were taken. Thus, the playing of the entire tape recorded statement in the presence of the jury constituted improper impeachment. Cf. Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978). The last argument by appellant that warrants discussion is that the trial court erred in disallowing the testimony of Dr. Lenore Walker, a clinical psychologist who would have testified as an expert with regard to the battered…
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State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980)…for further proceedings consistent with this opinion. REVERSED and REMANDED. DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. .Rankin v. State, 143 So. 2d 193 (Fla.1962); Smith v. State, 379 So. 2d 996 (Fla. 5th DCA 1980); Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978). . State v. Davis, 243 So. 2d 587 (Fla.1971). . State v. J.T.S. and G.R.W., 373 So. 2d 418 (Fla. 2d DCA 1979).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rankin v. State, 143 So. 2d 193 (Fla. 1962)
- United States v. McKEEVER, 271 F.2d 669 (2d Cir. 1959)
- Jones v. Moss, 333 So. 2d 109 (Fla. 1st DCA 1976)
- Oliver v. State, 239 So. 2d 637 (Fla. 1st DCA 1970)