Santiago v. State, 94-868
| Decision Date | 24 March 1995 |
| Docket Number | No. 94-868,94-868 |
| Citation | 652 So.2d 485 |
| Parties | 20 Fla. L. Weekly D742 Albert SANTIAGO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Noel A. Pelella, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.
Santiago appeals his convictions for attempted second degree murder and sexual battery. Because there was insufficient evidence to convict the defendant on either charge, we reverse the convictions and remand for discharge.
The prosecution for attempted murder was predicated upon the original version of a choking incident given to the police by the victim, Ms. Oquendo, 1 immediately after the incident. Prior to trial she recanted her original statement in regard to the nature of the choking and the events surrounding it, as well as her statement in regard to the alleged sexual battery. At trial, she testified that Santiago had briefly choked her in self-defense after she hit him with a broomstick and while she was choking him. The state's medical expert testified that bruises on Oquendo's neck were suggestive of her having been choked, but he was unable to say for how long or how hard she had been choked, and the choking could have lasted for only a few seconds.
In other words, the only evidence offered by the state to substantiate the charge of attempted murder against Santiago was the prior inconsistent statement by its own witness, Oquendo, and that is not enough. State v. Moore, 485 So.2d 1279 (Fla.1986); Smith v. State, 379 So.2d 996 (Fla. 5th DCA), cert. denied, 386 So.2d 642 (Fla.1980). As we stated in Smith, such prior inconsistent statements may be used for impeachment but cannot be considered as substantive evidence against a defendant. Smith 379 So.2d at 997.
Likewise, the only evidence of a sexual battery was Oquendo's since recanted statement that the defendant had forced her to have sex. This prior inconsistent statement is inadequate to sustain the conviction. See, e.g., Moore.
While unnecessary to our disposition of this case, we additionally observe for the benefit of bench and bar that an error was committed in seating a juror against whom the defense had interposed a peremptory challenge. The prospective juror, Ms. Stone, had informed the court during voir dire that she worked for a law firm as a certified paralegal. Defense counsel exercised a peremptory challenge but the state asserted that the defense was simply attempting to exclude women from the jury. Defense counsel countered that she did not want someone on the jury with a strong legal background who could dominate the other jurors. Counsel pointed out that she had in fact struck a male lawyer for the same reason Stone...
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...confidence in the criminal conviction to allow it to stand. See also State v. Moore, 485 So.2d 1279 (Fla.1986); Santiago v. State, 652 So.2d 485 (Fla. 5th DCA 1995). Our rulings in Green and Moore were primarily concerned with the minimum standard of evidence required to sustain a criminal ......
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