Everett v. State, 4-86-1678
| Decision Date | 24 August 1988 |
| Docket Number | No. 4-86-1678,4-86-1678 |
| Citation | 530 So.2d 413,13 Fla. L. Weekly 1980 |
| Parties | 13 Fla. L. Weekly 1980 Wayne M. EVERETT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John W. Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Wayne M. Everett, was convicted of second degree murder and sentenced to twenty-two years' imprisonment. On appeal he poses six points for our consideration, only one of which, we believe, requires any extended discussion.
Randy Feickert, a girl named Kimberly Shipp, and others were drinking in the Shamrock Inn when appellant arrived looking for Shipp's sister. Eventually, appellant and Feickert got into a fight in the parking lot. Several witnesses sought to intervene, without success, and Feickert seemed to be having the best of the fight. The altercation ended abruptly, and appellant got up off the ground and entered a car with Shipp and another witness. About that time, other people exited the bar and approached Feickert as he fell to the ground. When they went to assist him, it appeared he had been stabbed in the chest, a wound that later caused his death. No one ever saw a weapon in the possession of either combatant before, during, or after the fight. However, appellant had an empty sheath for a lock-blade knife on his belt.
A few days after this incident, the police took two different statements from Shipp in which she stated, among other things, that when she and appellant got into the car to leave the scene of the fight, appellant said, She also stated that the detective interrogating her admonished her that was a very important point and asked if appellant was the one making the statement. She answered "Yes." In her second statement, Shipp stated that appellant stabbed the victim before she arrived on the scene of the fight, or while the fight was going on. However, the sum total of her statement is that she really did not know when, or if, appellant stabbed the victim.
At trial, the sense of Shipp's testimony regarding who killed Feickert was that she simply didn't know. She wasn't sure whether appellant had made any statement in the car as they were departing the scene nor did she know how or when the victim was stabbed. In other words, she either never knew what happened or could not remember.
The critical point made by appellant on this appeal is that the trial court committed reversible error in declaring Shipp an adverse witness and allowing the state to examine her by leading questions that introduced into evidence her pretrial statements.
The authorities are quite clear in Florida that not every prior inconsistent statement made by a witness offered by a party enables that party to have the witness declared adverse so as to allow impeachment of the witness by use of the prior statements. The witness must not only fail to give the beneficial evidence the party had expected of him, but he must become adverse by testifying in a fashion that is prejudicial to the cause of the party producing him. A good exposition of the rule is contained in Jackson v. State, 451 So.2d 458, 462 (Fla.1984), quoting from Adams v. State, 34 Fla. 185, 195-96, 15 So. 905, 908 (1894):
It is very erroneous to suppose that, under this statute [§ 1101 Rev.Stat.Fla. (1892), precursor to § 90.608(2), Fla.Stat. (1979) ], a party producing a witness is at liberty to impeach him whenever such witness simply fails to testify as he was expected to do, without giving any evidence that is at all prejudicial to the party producing him. The impeachment permitted by the statute is only in cases where the witness proves adverse to the party producing him. He must not only fail to give the beneficial evidence expected of him, but he must become adverse by giving evidence that is prejudicial to the cause of the party producing him. When a party's witness surprises him by not only failing to testify to the facts expected of him, but by giving harmful evidence that is contrary to...
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...the impeachment error. E.g., United States v. Hogan, supra; United States v. Gilliam, 484 F.2d 1093 (D.C.Cir.1973); Everett v. State, 530 So.2d 413 (Fla.App.1988); People v. Robinson, 189 Ill.App.3d 323, 136 Ill.Dec. 744, 545 N.E.2d 268 (1989), appeal denied, 129 Ill.2d 570, 140 Ill.Dec. 67......
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