State v. Richards

843 So. 2d 962, 2003 WL 1916693
CourtDistrict Court of Appeal of Florida
DecidedApril 23, 2003
Docket3D02-572
StatusPublished
Cited by11 cases

This text of 843 So. 2d 962 (State v. Richards) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Richards, 843 So. 2d 962, 2003 WL 1916693 (Fla. Ct. App. 2003).

Opinion

843 So.2d 962 (2003)

The STATE of Florida, Petitioner,
v.
Xavier RICHARDS, Respondent.

No. 3D02-572.

District Court of Appeal of Florida, Third District.

April 23, 2003.

*963 Robert A. Butterworth, Attorney General, and Steven R. Berger, Assistant Attorney General, for petitioner.

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for respondent.

Before COPE and LEVY, JJ., and NESBITT, Senior Judge.

On Rehearing Denied

COPE, J.

On consideration of the respondent's motion for rehearing, we withdraw the court's previous opinion and substitute the following opinion.

The State petitions for a writ of certiorari, seeking to quash an order which limits the State's ability to impeach State witness Shawanna Glenn. The petition challenges the trial court's interpretation of Morton v. State, 689 So.2d 259 (Fla.1997), receded from in part on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000). We conclude that the petition is well taken and grant it.

I.

Defendant-respondent Xavier Richards is charged with the first degree murder of *964 Floyd Williams. Ms. Glenn is the defendant's girlfriend.

The victim was still alive when the police arrived at the scene. He told the police that Ms. Glenn and the defendant had robbed him and the defendant shot him.

Ms. Glenn was interviewed shortly after the shooting. She initially denied any knowledge of the shooting. She stated that during the evening, she and the defendant had quarreled over the defendant's losing his job. She and the defendant walked to a nearby club. The defendant stayed outside and Ms. Glenn went inside.

Ms. Glenn said that inside the club, she had drinks and played pool with the victim, Floyd Williams. After two hours, Ms. Glenn looked outside the club and saw that the defendant was no longer there. She and the victim then walked toward her house. A short distance from her house, she and the victim separated and she went home alone. The shooting of the victim took place shortly after that.

At the police station, a computer voice stress analyzer (CVSA) test was administered to Ms. Glenn. It showed that she was not being truthful. The detective told her this and told her he thought that she was covering up for the defendant.

Ms. Glenn then stated that the defendant had admitted to her that he shot the victim. She said this occurred in a cell phone call from the defendant shortly after the shooting, in which the defendant asked her to come pick him up but she refused to do so. Ms. Glenn's cell phone records confirmed that she received several telephone calls from a pay telephone at the relevant time.

Ms. Glenn then gave the police a tape-recorded statement. This was played back for her and she acknowledged that the statement was correct.

Two months later, Ms. Glenn was interviewed by the new lead detective on the case. Ms. Glenn told the new detective that her statement was correct except for the part about receiving the incriminating phone call from the defendant. She maintained that she had been threatened by the original detective and had made up that part of the statement. She told the defendant's counsel the same thing.

The defendant moved to suppress Ms. Glenn's statement entirely. The defense contended that the original detective had threatened to charge Ms. Glenn with murder if she did not give a statement implicating the defendant. The trial court conducted an evidentiary hearing at which Ms. Glenn and both detectives testified. At the conclusion of the hearing the trial court found that Ms. Glenn's statement was voluntary and denied the request to suppress it.

The defense then argued alternatively that under Morton, it would be impermissible for the State to ask Ms. Glenn at trial about the telephone call she had received from the defendant. Since she had recanted that part of her statement, the only reason to ask her about the recanted statement would be for purposes of impeachment. The defense contended that under Morton, it would be impermissible to place the contents of the defendant's telephone call before the jury.

The trial court granted the motion, and the State has petitioned for a writ of certiorari.

II.

The trial court and the parties acknowledge that Ms. Glenn is being called for legitimate forensic purposes by the State in this case. Ms. Glenn's testimony places the defendant in proximity to Ms. Glenn and the victim throughout the evening *965 of the crime. Her testimony also supplies a possible motive for the shooting.

She has, however, recanted the part of her statement where she said that the defendant called her and admitted shooting the victim. Under the Evidence Code, a party is allowed to impeach its own witness. § 90.608, Fla. Stat. (2001). Standing alone, this provision would allow the State to impeach Ms. Glenn with her prior inconsistent statement to the detective that the defendant admitted committing the murder.

The Florida Supreme Court through case law has placed a limitation on the ability of a party to impeach its own witness where, as here, there has been a recantation. Morton, 689 So.2d at 262-63. The Morton rule prohibits the calling of a witness if the sole or primary purpose is to impeach that witness. Id. at 263-64; Charles W. Ehrhardt, Florida Evidence § 608.2, at 459-61 (2002). The Morton court said:

Obviously, no single rule can be delineated to cover all of the circumstances under which parties will seek to impeach their own witnesses. Generally, however, if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony. In a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement. Of course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating. In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.

Morton, 689 So.2d at 264 (emphasis added). The Morton decision is based on federal authority on this issue. Id. at 262-64.

The principles applicable here have been summarized by McCormick on Evidence as follows:

There is some dispute whether and under what circumstances impeachment of one's own witness is impermissible because of prejudice to the opposing party, particularly in criminal cases. It has been widely held that a criminal prosecutor may not employ a prior inconsistent statement to impeach a witness as a "mere subterfuge" or for the "primary purpose" of placing before the jury substantive evidence which is otherwise inadmissible. Application of the "mere subterfuge" or "primary purpose" doctrine focuses on the content of the witness's testimony as a whole.

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Bluebook (online)
843 So. 2d 962, 2003 WL 1916693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richards-fladistctapp-2003.