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James v. State6/26/2000
An appeal from the Circuit Court for Gadsden County. William L. Gary, Judge.
Derrick James challenges his conviction for second degree murder and carrying a concealed firearm arguing that the trial court erred in allowing the state to elicit testimony from a witness under the guise of impeachment for the purpose of introducing a prior inconsistent statement by another state witness. On the authority of Morton v. State, 689 So. 2d 259 (Fla. 1997), receded in part, Rodriguez v. State, 753 So. 2d 29, 47 (Fla. 2000), we reverse and remand for a new trial.
Appellant was indicted for the first degree murder of Michael Reynolds at the Prestige Lounge in Gadsden County. At the ensuing jury trial, the state introduced evidence that appellant was seen discharging a gun into the air and threatening that he intended to inflict personal injury to somebody that evening. The state further produced the testimony of Lamonta Peterson, who testified that he saw appellant shoot the victim. Peterson's testimony, however, was later contradicted by Alan Jackson, who testified that, after the shooting had occurred, Peterson told him that Peterson did actually not see the murder, but had heard that appellant had committed the offense. After Peterson testified, the state called Chad Jones, who testified that he is subject to blackouts due to excessive use of alcohol and that he could not recall either seeing the appellant shoot the victim or telling Roosevelt Brown, the brother of the victim, that he saw appellant shoot the victim.
The state thereafter sought to introduce, through the testimony of Roosevelt Brown, Jones' prior statement that he saw appellant murder the victim, which the state argued was inconsistent with his trial testimony. The defense objected, arguing, among other things, that it was improper to introduce Jones as a witness for the sole purpose of later impeaching him by a prior inconsistent statement and that Jones' testimony that he could not recall saying to Brown that he witnessed the shooting was not an impeachable statement. All objections were denied. When Brown was called by the state, the defense again objected, arguing that Jones' testimony was not inconsistent with the statement allegedly made to Brown. The trial court again denied the objection, but gave a instruction that the jury was to consider Brown's testimony only for the purpose of considering the credibility of Chad Jones and was not to use the testimony of Brown as evidence of guilt.
Section 90.608(1), Florida Statutes (1997), provides that:
Any party, including the party calling the witness, may attack the credibility of a witness by:
(1) Introducing statements of the witness which are inconsistent with the witness's testimony.
In Morton, the Florida Supreme Court recognized that the "literal wording of section 90.608 can be subject to abuse." Morton, 689 So. 2d at 262.
The court explained the potential abuse with the following hypothetical:
A prosecutor calls a witness who has made a previous statement implicating the defendant in a crime; that statement would be excluded as hearsay if offered for its truth; the prosecutor knows that the witness has repudiated the statement and if called, will testify in favor of the defendant; nonetheless, the prosecutor calls the witness for the ostensible purpose of "impeaching" him with the prior inconsistent statement. The reason that this practice appears abusive is that there is no legitimate forensic purpose in calling a witness solely to impeach him. If impeachment were the real purpose, the witness would never be called, since the most that could be accomplished is a net result of zer
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