Price v. State, 84-483
| Decision Date | 23 May 1985 |
| Docket Number | No. 84-483,84-483 |
| Citation | 469 So.2d 210,10 Fla. L. Weekly 1292 |
| Parties | 10 Fla. L. Weekly 1292 Charles Wesley PRICE, Appellant/Cross-Appellee, v. STATE of Florida, Appellant/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Samuel R. Mandelbaum and Anthony F. Gonzalez, Tampa, and Edward R. Kirkland, Orlando, for appellant/cross-appellee.
Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.
A mistrial was declared at defendant's first trial and he was retried. At the first trial a witness, Sonya Lee Whitlow Miller, testified that she had not received quaaludes from the defendant. At the second trial the State called Ms. Miller and she testified that defendant gave her two quaaludes from a certain bag. Over the objection of defense counsel the trial court then permitted the state attorney to further question the witness to bring to the attention of the second jury that the witness had made a prior inconsistent statement at the first trial, that the prior sworn statement was not true and that the witness had made the prior untrue statement because one James Elliot had twice threatened the witness to the effect that if the witness ever told the truth about anything against the defendant, the witness would be shot. We reverse on this point. The State argues that it was merely anticipating that the defense was going to impeach Ms. Miller by her prior inconsistent statement and thus sought to explain her inconsistent statements citing United States v. Cochran, 499 F.2d 380 (5th Cir.1974), which held that a witness impeached on the basis of a prior inconsistent statement may endeavor to explain that the prior statement was made when the witness feared bodily harm. The State's argument might have merit if the testimony it elicited had come after Ms. Miller had in fact been impeached by the defense with her prior inconsistent statement and the State was seeking to rehabilitate her. However, here the testimony came in during the State's case in chief and thus was untimely and improper. See Erp v. Carroll, 438 So.2d 31 (Fla. 5th DCA 1983); Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984); United States v. Carney, 461 F.2d 465 (3d Cir.1972).
The State "anticipates" impeachment of its own witness by the defense at the State's peril because the option is always with the defense to impeach or not. The defense often quite reasonably does not impeach a particular witness because the...
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...convictions were both untimely and improper and the trial court correctly sustained the state's objection thereto. See Price v. State, 469 So.2d 210 (Fla. 5th DCA 1985). See also Ryan v. State, 457 So.2d 1084, 1092 (Fla. 4th DCA "Anticipatory rehabilitation" not only "scrambles the orderly ......
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...have by petition for review Sloan v. State, 472 So.2d 488 (Fla. 2d DCA 1985), due to express and direct conflict with Price v. State, 469 So.2d 210 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Sloan was convicted and sentenced for burglary of a structure and grand thef......
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State v. Price
...Edward R. Kirkland, Orlando, for respondent/cross-petitioner. SHAW, Justice. We have before us by petition for review Price v. State, 469 So.2d 210 (Fla. 5th DCA 1985), due to express and direct conflict with Bell v. State, 473 So.2d 734 (Fla. 2d DCA 1985). We have jurisdiction. Art. V, § 3......