State v. Palmore

• Decision Date: 11 August 1987
• Docket Number: 84-60,Nos. 83-2970,s. 83-2970
• Citation: 510 So.2d 1152,12 Fla. L. Weekly 1946
• Parties: 12 Fla. L. Weekly 1946 The STATE of Florida, Appellant, v. Rickie Lee PALMORE, Appellee.
• Court: Florida District Court of Appeals

Page 1152

510 So.2d 1152

12 Fla. L. Weekly 1946

The STATE of Florida, Appellant, v. Rickie Lee PALMORE, Appellee.

Nos. 83-2970, 84-60.

District Court of Appeal of Florida,

Third District.

Aug. 11, 1987.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellant.

Samek & Besser and Lawrence Besser, Miami, for appellee.

Before NESBITT, BASKIN, and JORGENSON, JJ.

NESBITT, Judge.

The state appeals from a suppression order, issued by the trial court, barring the admission of Palmore's sworn statement from the state's case-in-chief. ¹ We reverse.

Palmore filed a motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The motion accepted as truthful and undisputed many of the facts which were alleged by the victim. In support of the motion, Palmore filed an affidavit swearing to the truthfulness of the facts and assertions contained in the motion. Palmore subsequently withdrew the motion.

At a hearing on pretrial motions, the state requested a ruling on the admissibility of Palmore's sworn statement. Palmore conceded that the statement was admissible for purposes of impeachment, but objected to its admissibility in the state's case-in-chief. The trial court held that the state may use the statement only for purposes of impeachment or rebuttal.

On appeal, the state contends that Palmore's written statement is an adoptive admission and should therefore be admissible in its case-in-chief. Palmore contends that the trial court's ruling is correct and comports with the rules of evidence.

As a general rule, evidence which is inadmissible for one purpose may be admissible for another purpose. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); C.W. Ehrhardt, Florida Evidence § 107.1 (2d ed. 1984); see § 90.107, Fla.Stat. (1985). Although Palmore's statement may be inadmissible for the purpose of bolstering the victim's testimony, Van Gallon v. State, 50 So.2d 882 (Fla.1951); Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980), this does not mean that the statement is excluded for all purposes.

Under section 90.803(18)(b), Florida Statutes (1985), a statement offered against a party, and to which the party has manifested his adoption or belief in its truth, may be admitted as substantive evidence against that party. This is so, regardless of whether the statement is against interest, and notwithstanding that the statement may otherwise constitute inadmissible hearsay. C.W. Ehrhardt, supra, § 803.18.

In the present case, Palmore expressly manifested his belief in the truth of the statements contained in the motion to dismiss, thereby adopting those statements as his own. See Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983); see also United States v. Johnson, 529 F.2d 581 (8th Cir.), cert. denied, 426 U.S. 909, 96 S.Ct. 2233, 48 L.Ed.2d 835 (1976). Since the statements are relevant to the issue of guilt, they are admissible as an adoptive admission and may be admitted in the state's case-in-chief. ² Cf. Leslie v. State, 35 Fla. 171, 17 So. 555 (1895) (statement made by the defendant in an affidavit submitted with motion for a continuance may be admitted as an admission against the defendant); Newton v. State, 21 Fla. 53 (1884) (same). Because the statements are equivalent to a confession, they may not be admitted, however, without prima facie proof of the corpus delicti of the crime. Jefferson v. State, 128 So.2d 132 (Fla.1961).

As a final note, we reject Palmore's contention that the sworn statement, made in support of his motion to dismiss, may not be used against him at trial since this would impinge upon his right to seek a motion to dismiss. His attempt to analogize this case to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), is without merit. In Simmons, the United States Supreme Court held that if damaging admissions made by the defendant in support of a motion to suppress could be used against him, the defendant would be forced to choose between exercising one of two constitutionally protected rights: the right to remain silent and the right to be free from unlawful searches and seizures. The Court found that this would have an impermissible chilling effect upon the defendant's exercise of his constitutional rights, and therefore, reluctantly held that statements made under such circumstances are inadmissible at trial.

In the present case, even assuming that the defendant was forced to make damaging admissions to secure a dismissal, ³ there is no constitutionally protected right to make a motion for a dismissal. Therefore, the defendant is not forced to make a choice between two constitutional rights. ⁴ Because Simmons is expressly limited to cases in which the exercise of a constitutional right conflicts with exercise of another constitutional right, 390 U.S. at 394, 88 S.Ct. at 976, it is not applicable in this case.

Since these statements may be admitted against Palmore as an adoptive admission under section 90.803(18)(b), we find that the trial court erred in denying the state's motion. Accordingly, the order under review is

Reversed.

BASKIN, Judge (dissenting).

The majority permits the state to use as substantive evidence against Palmore statements contained in a sworn motion to dismiss he filed and then withdrew. The majority's holding pivots on the assumption that Palmore was not required to adopt the victim's version of the facts in filing his motion to dismiss; however, contrary to the majority's view, Florida Rule of Criminal Procedure 3.190(c)(4) requires the very procedure he followed. ¹ See State v. Davis, 243 So.2d 587 (Fla.1971); State v. Fordham, 465 So.2d 580, 581 (Fla. 5th DCA 1985). Fordham dictates that the accused swear to facts based upon his own knowledge, not upon "information and belief." Carroll v. State, 251 So.2d 866 (Fla.1971), holds that a defendant need not waive a constitutional right (i.e., speedy trial) in order to assert the insufficiency of the information lodged against him. Thus characterizing Palmore's belief in the truth of the statements as an "adoptive admission" and ruling that Palmore abandoned his denial of guilt deprives Palmore of his constitutional right to be fully informed of the charges against him, and places him in a dilemma analogous to the one faced by the defendant in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968): he must choose between denying guilt and challenging the sufficiency of the information. ² Accordingly, I would hold that the trial court correctly limited the state's use of the statement to impeachment or rebuttal and would affirm its ruling.

1 This appeal is properly brought on behalf of the state, pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), as authorized by the Supreme Court of Florida in State v. Palmore, 495 So.2d 1170 (Fla.1986), quashing this court's previous dismissal of the state's appeal at State v. Palmore, 469 So.2d 136 (Fla. 3d DCA 1984).

2 We note that although Palmore subsequently withdrew his motion to dismiss, this does not erase the existence of his sworn statement adopting the facts contained within the motion as true. Therefore, the fact that the motion was subsequently withdrawn does not affect the...