State v. Moore, 82-370
| Decision Date | 29 December 1982 |
| Docket Number | No. 82-370,82-370 |
| Citation | 424 So.2d 920 |
| Parties | STATE of Florida, Appellant, v. Gene A. MOORE, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
Appellee, Gene Arthur Moore, was indicted by the Palm Beach County Grand Jury for murder in the first degree. From an order granting appellee's motion to dismiss the indictment, the State has perfected this appeal.
It appears from the briefs of the parties that the State obtained statements from four eye witnesses who identified appellee as the person who committed the homicide in question. Two of the four testified under oath before the grand jury. Subsequently, all four of the said witnesses recanted in sworn statements. Thereupon, appellee moved to dismiss the indictment pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), on grounds that there were no disputed issues of fact and the undisputed facts fail to establish a prima facie case of guilt. The thrust of appellee's motion was that the State has no remaining witness who could identify appellee as the perpetrator of the crime. The State filed a response to appellee's motion to dismiss acknowledging that the four eye witnesses had changed their testimony. The response alleges that the four witnesses are prostitutes for the appellee and one is related to him. The State conceded that, as the law presently exists, if the State has no substantive evidence to identify appellee as the person who committed the crime, the court must grant the motion to dismiss. However, the State's response advised the trial court that the State would not nolle pros the case and intended to ask the appellate court to revisit the question of the limited admissibility of the prior statements. Finally, the State requested the trial court to admit the recanted, prior inconsistent statements as substantive evidence of the crime and allow the jury to decide which statement is the more credible.
In its order granting the motion to dismiss the trial court stated that the State acknowledged the present status of the law in Florida is that prior inconsistent statements are admissible only for impeachment and not as substantive evidence. However, the trial court observed,
Nevertheless, the State has not filed a nolle prosequi of this case. Instead, the State prefers this Court to enter its order of dismissal so that the State can take an appeal therefrom, alleging error on the part of this Court--an inconsistent position to say the least. But, as President Harry Truman observed, 'The buck stops here!'
On appeal the State contends that the prior inconsistent statements were admissible as substantive evidence. Appellee responds with the suggestion that the State cannot tender a position to the trial court and then successfully offer a different basis for reversal on appeal. It must be remembered that, while the prosecutor trying the case was under the impression that Florida law precluded use of the statements as substantive evidence (because that is what the existing case law holds), he advised the trial court that he would not nolle pros the case because he wanted to try to get the appellate court to change that rule and allow the admission of such statements for consideration by the jury. The prosecutor did not say that dismissal was proper and then stop; rather, he said dismissal was proper but that the State would seek review of any order granting dismissal and argue to an appellate court that dismissal was erroneous. Under these circumstances the State is not estopped from asking this court to reverse the order dismissing the indictment against appellee. As we shall point out hereafter, the prosecutor was mistaken in his understanding of the current status of Florida law on the question. We do not say that critically because there are several Florida cases that held prior inconsistent statements are admissible only for impeachment. The change in the law is of recent vintage and has come about in Florida because of the adoption of the Florida Evidence Code. Thus, there was good reason for the prosecutor and the trial court to assume the statements were not admissible as substantive evidence, and that therefore the State could not survive a motion for judgment of acquittal. Although he was mistaken about the status of the law, the prosecutor was completely candid with the court, and such candor is to be encouraged. In view of his complete disclosure to the trial court and in view of the seriousness of the charge in this case, we have no difficulty in treating the question on appeal.
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