Mitchum v. State
| Decision Date | 17 August 2022 |
| Docket Number | 1D21-1993 |
| Parties | Darius MITCHUM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
A jury found Appellant guilty of armed robbery. In this appeal, Appellant asks us to grant him a new trial because in his view, the trial court erroneously allowed the State to call a witness for the primary purpose of impeaching him with his prior inconsistent statements. Because we hold that the trial court made no error, we affirm. We also hold that even if the trial court should have excluded the witness’ testimony, the error would have been harmless.
The witness at issue is James Lewis. The State alleged that in the early morning hours of January 8, 2020, Appellant and Lewis robbed the McDonald's restaurant in Gainesville where they were employees. Lewis pleaded guilty. Appellant proceeded to trial.
Lewis’ sentencing hearing occurred approximately two and a half months before Appellant's trial. At that hearing, the State asked Lewis, "Did you, along with Darius Mitchum, rob the McDonald's, each of you armed with a firearm?" Lewis answered, "Yes, sir." Lewis also gave a deposition in Appellant's case one week before Appellant's trial. Lewis refused to answer most of the deposition questions. However, he did testify that Appellant was the "mastermind" who planned the McDonald's robbery.
Near the end of its case-in-chief at Appellant's trial, the State announced its intention to call Lewis as a witness. Defense counsel objected. Citing Lewis’ overall lack of cooperation at his deposition, defense counsel alleged that Lewis would not offer any useful trial testimony. Defense counsel maintained that the State was only calling Lewis as a witness so that it could impeach him with his prior statements from his sentencing hearing and deposition. After considering Lewis’ proffered testimony and arguments from defense counsel and the State, the trial court took the matter under advisement and called a recess. Thereafter, the trial court overruled defense counsel's objection.
After another State witness testified, Lewis took the stand. He initially claimed that he did not recall being sentenced in his case. The State provided him with the transcript from his sentencing hearing. When asked whether he could then recall pleading guilty to armed robbery, Lewis answered, "I guess so." He agreed that he and Appellant are good friends who spent time together daily. However, he denied that they robbed the McDonald's. When confronted with the contrary response that he gave to that question in his sentencing hearing, Lewis alleged that he had not understood the question at the sentencing hearing. Lewis also claimed that he did not recall giving a deposition in this case. When the State confronted him with his deposition testimony that Appellant was the "mastermind" who planned the robbery, Lewis insisted that he did not recall making the statement.
Appellant argues that the trial court erred by allowing the State to call Lewis as a witness primarily to impeach him with his prior statements. Generally, an appellate court reviews a trial court's ruling on the admissibility of evidence for an abuse of discretion. Penalver v. State , 926 So. 2d 1118, 1132 (Fla. 2006). When such a ruling depends on interpreting the evidence code and applicable cases—such as when deciding if a statement is hearsay—the standard of review is de novo. Hardy v. State , 140 So. 3d 1016, 1019 (Fla. 1st DCA 2014) ; Chavez v. State , 25 So. 3d 49, 51 (Fla. 1st DCA 2009).
Any party, including the party calling the witness, may attack the witness’ credibility by introducing prior statements made by the witness that are inconsistent with the witness’ present testimony. § 90.608(1), Fla. Stat. However, it is improper to call a witness "merely as a device to place the impeaching testimony before the jury." Curtis v. State , 876 So. 2d 13, 20 (Fla. 1st DCA 2004). As the Florida Supreme Court has explained:
[I]f 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.... 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.
Bradley v. State , 214 So. 3d 648, 655 (Fla. 2017) (quoting Morton v. State , 689 So. 2d 259, 264 (Fla. 1997) ) (alterations in original).
The threshold issue is whether Lewis’ prior statements—those from his sentencing hearing and deposition that inculpated himself and Appellant—would be admissible if they were not offered for impeachment purposes. See id. (). Stated differently, the first question is whether Lewis’ prior statements were admissible as substantive evidence.
The rule against hearsay generally bars the admission of a declarant's out-of-court statements when a party offers those statements for the truth of the matter asserted. See generally § 90.801 and 90.802, Fla. Stat. Indeed, the rule from Morton and Bradley exists to prevent a party from circumventing the rule against hearsay:
Bradley , 214 So. 3d at 656 (quoting Morton , 689 So. 2d at 263 ).
However, the Florida Evidence Code recognizes that under certain conditions, a statement from a prior judicial proceeding is not hearsay and is admissible as substantive evidence:
§ 90.801(2)(a), Fla. Stat.; see also id. at Law Revision Council Note ("The prior statement may be used as substantive evidence."); Pearce v. State , 880 So. 2d 561, 569 (Fla. 2004) (); Moore v. State , 452 So. 2d 559 (Fla. 1984) ().
Here, the prior statements satisfy these requirements for admission as substantive evidence. Lewis’ statements from his sentencing hearing and deposition were statements that he gave "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Additionally, Lewis was subject to cross-examination by Appellant at the proceeding—Appellant's trial—where the State offered Lewis’ prior sworn statements as evidence.
Finally, Lewis’ trial testimony was inconsistent with his prior sworn statements. See Pearce , 880 So. 2d at 569 (). When asked at Appellant's trial whether he and Appellant committed the McDonald's robbery together, Lewis answered, "No." This testimony plainly contradicted his prior sworn statements at his sentencing hearing and deposition. Moreover, under the circumstances present here, Lewis’ claims of memory loss were also contradictory of his prior sworn statements.
A witness’ trial testimony that he does not remember the events at issue is not necessarily contradictory of his previous statements describing those events. See, e.g. , James v. State , 765 So. 2d 763, 766 (Fla. 1st DCA 2000) (); Calhoun v. State , 502 So. 2d 1364, 1365 (Fla. 2d DCA 1987) ( ). However, such testimony is contradictory when there is evidence suggesting that the witness’ claimed memory loss is insincere. See James , 765 So. 2d at 766 (); Davis v. State , 52 So. 3d 52, 54 (Fla. 1st DCA 2010) (); see also United States v. Cisneros-Gutierrez ...
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