Allison v. State, E-271

• Citation: 162 So.2d 922
• Decision Date: 17 March 1964
• Docket Number: No. E-271,E-271
• Parties: James Henry ALLISON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 922

162 So.2d 922

James Henry ALLISON, Appellant, v. STATE of Florida, Appellee.

No. E-271.

District Court of Appeal of Florida, First District.

March 17, 1964.

On Rehearing April 28, 1964.

Harry Lewis Michaels, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., and A. G. Spicola, Jr., for appellee.

CARROLL, DONALD K., Acting Chief Judge.

The appellant, who was tried and convicted of assault with intent to commit rape, has appealed from the judgment and sentence entered by the Circuit Court for Leon County.

The two main questions presented for our determination on this appeal are: whether the trial court erred in admitting, over defense objections, certain testimony concerning prior consistent statements made by the minor prosecutrix; and whether that court erred in refusing to charge the jury with regard to lesser included offenses of which they might find the defendant guilty.

At the trial the thirteen-year-old prosecutrix testified that on September 11, 1963, when she was twelve years old, she was 'playing hookey' from school with two cousins, a girl aged ten and a boy 13, under a railroad trestle in the City of Tallahassee, in the said county; that after about 30 minutes the defendant was walking down the tracks, saw them, and asked the children why they were not in school, to which inquiry they first stated that the bus had left them but then admitted that they were skipping school, and he then told them that they shouldn't be down there getting their clothes dirty; and that the defendant asked her if she knew anything about sex relations, put his hand up her dress, and threatened the three children with a knife and forced them to sit on the ground. On cross-examination she testified that the defendant jerked her pants down, tearing them, and then 'made me lie down and then he got on top of me.' She further testified that while in that position he displayed his private parts and about three or four times asked her 'was it in,' although she did not remember how long he was 'actually on top of [her] with his private parts out.' When the defendant got up, he zipped up his pants, warned the children not to 'tell on' him, threatening them again with his knife, and walked away.

The next two witnesses for the prosecution were the Assistant Chief and a sergeant of the Tallahassee Police Department, who had talked with the prosecutrix later in the day. The former, in answer to a question propounded by the defense counsel as to whether the prosecutrix told him that the defendant 'had started to do it but then he stopped. * * *' replied, 'Somewheres along in the investigation she did.'

The State then called the police sergeant and interrogated him concerning the conversation at the police station between the prosecutrix and the Assistant Chief of Police. The defendant's attorney unsuccessfully objected to this testimony as hearsay. The statement of the prosecutrix, as recalled by the sergeant, was substantially similar to her testimony at the trial.

The Assistant Chief of Police also testified concerning a voluntary statement made by the defendant in the police station on September 13, 1962. This statement was generally consistent with the prosecutrix's testimony, except that the defendant declared that he had made no attempt at penetration, but had said, 'Oh, no, I couldn't do that,' got up, and left the scene to buy some gasoline.

The next two witnesses called by the prosecution were the prosecutrix's said two cousins, whose testimony mainly supported the substance of her testimony at the trial.

The above testimony, together with the prosecution's medical evidence, was clearly sufficient to support the jury's finding that the defendant was guilty of assault with intent to commit rape, as charged, but that fact does not, of course, and our inquiry, for our duty is to ascertain whether the evidence upon which the jury founded their verdict was admissible under the rules of evidence and whether in the trial the defendant was accorded all the rights secured to him under the applicable rules and laws.

As mentioned earlier, the first question raised on this appeal is whether the trial court erred in admitting, over defense objections, certain testimony concerning prior consistent statements made by the minor prosecutrix--more specifically, the sergeant's testimony about the statement she made in the police station concerning actions earlier that day. The answer to this question can be found only through a study of the authorities in one of the most difficult subjects in the law of evidence--the admissibility, for the purpose of supporting an impeached witness, of prior statements by him consistent with his testimony. Fortunately, this subject is comprehensively covered by annotations in 140 A.L.R. 21-186 and 75 A.L.R.2d 909-979. As borne out by the authorities from many jurisdictions collated in those annotations, the general rule is well recognized that the testimony of a witness cannot be bolstered up or supported by showing that he made statements out of court similar to and in harmony with his testimony on the witness stand. In some cases, however, the courts have relaxed or not applied this rule where the witness has been impeached or his credibility assailed.

The salutary nature and the necessity of such a rule are clearly apparent upon reflection in cases like the present, for without that rule a witness's testimony could be blown up out of all proportion to its true probative force by telling the same story out of court before a group of reputable citizens, who would then parade onto the witness stand and repeat the statement time and again until the jury might easily forget that the truth of the statement was not backed by those citizens but was solely founded upon the integrity of the said witness. This danger would seem to us to be especially acute in a criminal case like the present when the prosecutrix is a minor whose previous out-of-court statement is repeated before the jury by adult law enforcement officers.

The leading Florida case in which the general rule excluding evidence of prior consistent statements has been recognized is Van Gallon v. State, 50 So.2d 882 (Fla.1951). In that case the Supreme Court of Florida also discussed one of the exceptions to that rule, as follows:

'We recognize the rule that a witness's testimony may not be corroborated by his own prior consistent statement and the exception that such a statement may become relevant if an attempt is made to show a recent fabrication. The exception is based on the theory that once the witness's story is undertaken, by imputation, insinuation, or direct evidence, to be assailed as a recent fabrication, the admission of an earlier consistent statement rebuts the suggestion of improper motive and the challenge of his integrity.'

In that case, involving a conviction of murder in the second degree, the Supreme Court rejected the State's contention that the exception to the general rule was applicable because of sufficient indication in the record of impeachment by the appellant on the ground that there had been 'some late fabrication to meet the exigencies of the case.' The Supreme Court then held that the trial court had erred in overruling the appellant's objection to the prior consistent statement, and reversed the judgment of conviction.

Similarly in the case at bar, we cannot find in the record of the trial a sufficient showing that would justify the admission of the police sergeant's testimony concerning the prosecutrix's prior consistent statement under the 'recent fabrication' exception or any other of the recognized exceptions to the general rule precluding the admission of such a statement. It was error, therefore, for the trial court to overrule the appellant's objection to the said testimony.

As mentioned above, the second main question raised by the appellant in this appeal is whether the trial court erred in refusing to charge the jury with regard to lesser included offenses of which they might find him guilty. The record shows that the appellant specifically requested the court to give such a charge.

Section 919.16, Florida Statutes, F.S.A., provides as follows:

'Conviction of attempt; conviction of included offense. Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.'

Applying this statute literally to the instant case, the jurors were authorized to convict the appellant of any offense which is necessarily included in the offense of assault with intent to commit rape, and the trial court was required to charge the jury in this regard.

Although our research has revealed no decision in which a Florida court has undertaken to enumerate the offenses that are necessarily included in the crime of assault with intent to commit rape, our Supreme Court in many cases has had...