Monday v. State

• Decision Date: 06 September 2001
• Docket Number: No. 1D99-4785.,1D99-4785.
• Citation: Monday v. State, 792 So.2d 1278 (Fla. App. 2001)
• Parties: Delila Shawn MONDAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

792 So.2d 1278

Delila Shawn MONDAY, Appellant, v.STATE of Florida, Appellee.

No. 1D99-4785.

District Court of Appeal of Florida, First District.

September 6, 2001.

Michael R. Rollo, Pensacola, for Appellant.

Robert A. Butterworth, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PADOVANO, J.

Delila Monday, the defendant, appeals her convictions on two charges of committing a lewd and lascivious act in the presence of a child.She contends that the trial court erred in allowing the state to introduce evidence of two prior consistent statements of the victim.We conclude that these statements were properly admitted for the purpose of rehabilitating the victim after she had been impeached with a prior inconsistent statement.Therefore, we affirm.The victim was fifteen years old at the time of the incident.She had moved out of her parent's home and was living with the defendant.In her deposition, the victim testified that she had performed oral intercourse on the defendant and that the defendant then performed oral intercourse on her.She said in her deposition that the offenses were committed on April 10, 1999.

Defense counsel told the jury in his opening statement that he would call two witnesses who were house guests in the defendant's home during the weekend of April 10th and 11th.He said that these witnesses would testify that they were present the entire weekend and that the defendant had not engaged in any kind of improper conduct toward the victim.Counsel for the defendant also referred to evidence suggesting that the victim was not a credible witness.

When the victim testified at trial, she gave the same general account of the facts that she had given in her deposition, except that she changed her testimony regarding the date of the offenses.At trial, the victim said that the acts of oral intercourse had actually occurred more than a week earlier on April 2, 1999.Defense counsel impeached the victim on this point with the contrary testimony in her deposition.

On redirect examination, the state offered into evidence two pages from the victim's diary.An entry made on these pages on April 4, 1999, briefly describes the acts in question and indicates that they occurred on April 2, 1999.Defense counsel objected on the ground that the diary was inadmissible as a prior consistent statement, but the objection was overruled.The trial court concluded that the defense had opened the door to this testimony on cross examination.

In keeping with this ruling, the trial court allowed the state to place in evidence another pretrial statement made by the victim.An investigator with the sheriff's department testified that the victim signed an affidavit on April 13, 1999, stating that the offenses had occurred on April 2, 1999.A timely defense objection to the affidavit was overruled, as well.

The jury found the defendant guilty as charged on each of the two counts of lewd and lascivious conduct, and the trial judge sentenced her to concurrent five year terms in the Department of Corrections.The defendant then filed this appeal to challenge the validity of her convictions.

We begin by restating a fundamental principle that is not in dispute.An extrajudicial statement that is consistent with the testimony given by a witness at trial is hearsay and is not admissible to corroborate or bolster the witness's testimony.SeeRodriguez v. State,609 So.2d 493(Fla.1992);Van Gallon v. State,50 So.2d 882(Fla.1951);McElveen v. State,415 So.2d 746(Fla. 1st DCA1982).The danger in admitting a prior consistent statement in evidence is that the statement might acquire added credibility when it is repeated by a more trustworthy witness.

Several exceptions to the general rule are listed in section 90.801(2)(b), Florida Statutes(1999).This statute provides that a prior consistent statement is not hearsay if it is "offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication" and if the witness testifies at trial and is subject to cross examination.A prior consistent statement is not admissible merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.SeeJenkins v. State,547 So.2d 1017(Fla. 1st DCA1989).The party offering the statement must show that it refutes one of the particular charges identified in section 90.801(2)(b).

If the victim's prior consistent statements had been offered affirmatively to prove a fact in issue, they would not have been admissible.The defense lawyer did not suggest that the victim had been improperly influenced, that she had an improper motive, or that her statement regarding the date of the offense was a recent fabrication.To the contrary, the cross examination was designed to leave the jury with the impression that the victim's entire statement was fabricated from the start.Defense counsel pointed out that the victim may have falsely accused the defendant, because she needed a good reason to move out of the house.Additionally, defense counsel established that the victim had previously made a false accusation that she had been molested by her father.He argued that she had done this to get her way on one occasion and might very well be doing it again.

In the present case, however, the prior consistent statements were not offered as substantive evidence under the hearsay exclusion in section 90.801(2)(b), but rather to rehabilitate a witness who had been impeached.The circumstances in which a consistent statement may be used to rehabilitate a witness are not limited to those listed in the statute.A statement that is offered to impeach or rehabilitate a witness is not hearsay as defined in section 90.801(1), because it is not offered to prove the truth of the matter asserted.If a statement is not hearsay, there is no need to decide whether it qualifies for an exclusion from the hearsay rule.

Although the Florida courts have not yet addressed this point, federal courts have consistently held that the hearsay exclusions in rule 801(d)(1)(B) do not limit the circumstances in which a prior consistent statement may be admissible to rehabilitate a witness.SeeUnited States v. Castillo,14 F.3d 802(2d Cir.1994);United States v. Pierre,781 F.2d 329(2d Cir.1986);United States v. Casoni,950 F.2d 893(3d Cir.1991);United States v. Ellis,121 F.3d 908(4th Cir.1997);United States v. Harris,761 F.2d 394(7th Cir.1985);United States v. Andrade,788 F.2d 521(8th Cir.1986).These decisions are persuasive authorities, because the federal rule they interpret is substantially the same as the section of the Evidence Codethe defendant seeks to apply here.SeeHall v. Oakley,409 So.2d 93(Fla. 1st DCA1982);Dinter v. Brewer,420 So.2d 932(Fla. 3d DCA1982).

The issue we must decide then is whether a prior consistent statement is admissible to rehabilitate a witness who has been impeached with a prior inconsistent statement.This is a question that has been the subject of long-standing debate among judges and legal scholars.Appellate courts throughout the country have historically adopted one of two conflicting positions, neither of which is perfectly sound.

Some courts have held that the impeachment of a witness with a prior inconsistent statement does not alone justify the admission of a prior consistent statement as rehabilitation.SeeFrazier v. State,632 So.2d 1002(Ala.Crim.App.1993);People v. Williams,147 Ill.2d 173, 167 Ill.Dec. 853, 588 N.E.2d 983(1991);Commonwealth v. Zukoski,370 Mass. 23, 345 N.E.2d 690(1976);State v. Fulton,333 S.C. 359, 509 S.E.2d 819(1998);Green v. State,75 Wis.2d 631, 250 N.W.2d 305, (1977).The reason most often given for this position is that once the self-contradiction is proven or conceded it remains as a damaging fact, and it is not explained away simply by showing that the witness also gave a consistent account of the event.SeeMarcum v. State,39 Ala.App. 616, 107 So.2d 899(1958);State v. Murley,35 Wash.2d 233, 212 P.2d 801(1949);John W. Strong, McCormick on Evidence, 5th Ed. § 47(1999).

In contrast, other courts have held that a prior consistent statement is admissible as a matter of course to rehabilitate a witness who has been impeached with a prior inconsistent statement.SeeState v. McCarthy,179 Conn. 1, 425 A.2d 924(1979);State v. Palabay,9 Haw.App. 414, 844 P.2d 1(1992);Collins v. State,318 Md. 269, 568 A.2d 1(App.1990);People v. Sayles,200 Mich.App. 594, 504 N.W.2d 738(1993);State v. Huard,138 N.H. 256, 638 A.2d 787(1994).Proponents of this rule argue that if a contradictory statement counts against a witness, a consistent statement must then count in favor of the witness.See4 Wigmore, Evidence § 1126(ChadbournRev.1972).

The weakness in both of these positions is that they each employ an inflexible principle to resolve a problem that depends on the circumstances of a particular case.As Judge Friendly put it, both of these positions offer "rather simplistic" methods of resolving a problem that is not susceptible to a bright-line solution.SeeUnited States v. Rubin,609 F.2d 51, 67(2d Cir.1979)(Friendly, J., concurring).In some situations, the prior consistent statement might have probative force...