Collins v. State

• Decision Date: 12 September 1997
• Docket Number: No. 95-152,95-152
• Citation: 698 So.2d 1337
• Parties: 22 Fla. L. Weekly D2156 Moody Wayne COLLINS, Appellant, v. STATE OF Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1337

698 So.2d 1337

22 Fla. L. Weekly D2156

Moody Wayne COLLINS, Appellant, v. STATE OF Florida, Appellee.

No. 95-152.

District Court of Appeal of Florida First District.

Sept. 12, 1997.

Nancy A. Daniels, Public Defender; Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Thomas Crapps, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, Judge.

Moody W. Collins appeals his conviction for second degree murder. Because at the trial below the prosecution improperly impeached its own witness for the purpose of admitting irrelevant and highly prejudicial evidence, we reverse and remand for a new trial.

Mr. Collins lived with his wife, Kathy, his two daughters and son, the victim of the homicide, in a rural area of Clay County. The Collins family did not have a telephone and their home was accessible only by an unpaved road several miles in length. The Collins' son, Michael, was 13 years old at the time of death. He is described in the record as "emotionally disturbed" and indeed, attended a school for "severely emotionally disturbed children." Mr. Collins was in poor physical health and was taking numerous prescription drugs.

According to Mr. Collins, he found Michael in the family tool shed holding a .22 semi-automatic loaded rifle. He instructed Michael to hand him the rifle, and Michael complied handing the rifle over butt first. The rifle discharged, startling both father and son. Michael dropped to the floor knocking over sawhorses. Mr. Collins maintained that he was trying to fasten the safety, but mistakenly hit the trigger two more times.

Kathy Collins was awakened by her daughter. Mrs. Collins testified that she found Michael in a pool of blood and her husband in a hysterical state. She backed a pick-up truck to the shed and placed Michael in the bed of the truck on his stomach. As she drove down the driveway, she told a teenage boy, who was not produced at trial, to call "911." She then drove approximately 2 miles on the dirt road to a convenience store. She called 911 from there. Michael died shortly after the emergency medical personnel arrived.

A neighbor came to the Collins residence shortly after the shooting to offer to care for the other two children. She testified that she found Mr. Collins to be distraught; and that he was "howling like a dog" and would not release his children from his grip.

The police also arrived at the Collins residence shortly after the shooting. The police inspected the area and interviewed Mr. Collins, who gave conflicting explanations of the shooting. The police then arrested Mr. Collins.

Following a jury trial, Mr. Collins was found guilty of second degree murder. He asserts, among other things, that certain prosecutorial conduct rose to the level of fundamental error. Because we agree that the state's impeachment of its own witness combined with certain prosecutorial comment so infected the trial with irrelevant prejudicial evidence as to cast doubt on the reliability of the verdict, we reverse and remand for a new trial.

At trial, the state called Kathy Collins as one of its witnesses. She testified that, after Michael was shot, she loaded him into the bed of a pick-up and traversed down a bumpy dirt road. As a result of the ride, Michael sustained numerous scrapes and bruises. While these injuries did not contribute to his death, this claimed callous act was repeatedly emphasized by the prosecutor. ¹

The record before us reflects that Mrs. Collins was not charged with any offense in connection with her son's death, yet she was consistently painted by the prosecution as a co-conspirator of sorts and her actions became a feature of the case. The state used her activities and statements as evidence of a general family ill-will against Michael which could supply a motive for the shooting.

Further, during the state's direct examination of Mrs. Collins, she was asked why she placed Michael in the bed of the truck. Mrs. Collins responded that she was essentially doing what she thought best at the time. In addition, during her direct examination Mrs. Collins denied that she advised Tamara Homer not to talk to police. Thereafter, however, the state called Mrs. Homer as a rebuttal witness, who testified over objection that Mrs. Collins told her that she put Michael in the truck bed because she didn't want to get blood on the seats since the truck was borrowed and that Mrs. Collins told her not to talk with the police. The defense objected to this line of questioning, arguing that the State had called Mrs. Collins to the stand solely to procure an answer regarding an "irrelevant piece of information" to be able to introduce impeaching hearsay evidence which would paint Mrs. Collins as an "uncaring, unloving person."

Section 90.608(1), Florida Statutes (1993), permits any party, including the party calling the witness, to impeach the credibility of a witness without regard to whether the testimony of the witness constitutes surprise or affirmative harm. See Banks v. State, 648 So.2d 766 (Fla. 1st DCA 1994). This provision in the Florida Evidence Code in effect adopted Federal Rule 607. Thus, in construing section 90.608, Florida courts should be guided by federal decisions interpreting Federal Rule 607. Ehrhardt, Florida Evidence, § 608.2 at 379 (West 1996). As Professor Ehrhardt observes, under Federal Rule 607,

[T]he federal decisions have recognized that the provision can be abused and have imposed judicial limitations on the impeachment of a party's own witness. The most frequent situation in which a limitation has been recognized is when a party calls a witness for the primary purpose of placing before the jury the impeaching evidence, which is usually a prior inconsistent statement. The federal courts have condemned this practice when the impeachment of a party's own witness is a "mere subterfuge" for placing before the jury a prior statement or other evidence attacking the character of the witness.... Since the probative value of the testimony of a witness who is called only to impeach is low, and the danger is significant that the jury will be prejudiced by the evidence used to attack credibility, the application of § 90.403 will frequently exclude attacks on the credibility of a witness who is called as a device to place the impeaching evidence before the jury.

Id. at 379-80 (footnotes omitted); see also Balogh's of Coral Gables, Inc. v. Getz, 778 F.2d 649 (11th Cir.1985), rehearing granted and opinion vacated, 785 F.2d 895 (11th Cir.1986) original opinion reinstated in pertinent part, 798 F.2d 1356 (11th Cir.1986); U.S. v. Hogan, 763 F.2d 697 (5th Cir.1985), opinion withdrawn in part on other grounds, 771 F.2d 82 (5th Cir.1985), appeal decided, 779 F.2d 296 (5th Cir.1986); U.S. v. Miller, 664 F.2d 94, 97 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982) (prosecutor may not introduce evidence under the guise of impeachment for primary purpose of placing before the jury substantive evidence which is not otherwise admissible). We find persuasive the reasoning of the Iowa Supreme Court in interpreting a similar Iowa rule ²:

The right given to the State to impeach its own witnesses under Iowa Rule of Evidence 607 ... is to be used as a...