Urga v. State
| Decision Date | 18 June 1958 |
| Docket Number | No. 183,183 |
| Citation | 104 So.2d 43 |
| Court | Florida District Court of Appeals |
| Parties | Diamante URGA, Appellant, v. STATE of Florida, Appellee. |
Mark R. Hawes and Pat Whitaker, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Odis Henderson, Asst. Atty. Gen., for appellee.
The appellant, Diamante Urga, was convicted in the Criminal Court of Record for Hillsborough County on a charge of performing an abortion, and was sentenced to a term of five years' imprisonment. Three matters are urged for reversal upon this appeal: that there was error in denying a subpoena duces tecum in aid of the defense, that cross-examination of the prosecutrix was prejudiciously limited, and that certain other testimony in chief was improperly allowed to stand.
The first point must be disposed of adversely to appellant on authority of the recent decision in Raulerson v. State, Fla., 102 So.2d 281; McAden v. State, 155 Fla. 523, 21 So.2d 33; and Williams v. State, 143 Fla. 826, 197 So. 562. These cases establish the general rule in this jurisdiction that a defendant is not as a matter of right entitled to a transcript of statements of state witnesses taken by the prosecution in the course of preparation for trial under the circumstances here involved, and the reasoning there applied fully disposes of the argument of the point in the instant case. Cf. Trafficante v. State, Fla., 92 So.2d 811; Smith v. State, Fla., 95 So.2d 525.
The argument with respect to cross-examination of the prosecutrix presents a closer question. The witness testified at the trial which occurred on September 28 and 29, 1955, that she had freely and voluntarily made her original statement on January 21, 1954, implicating the defendant. By an intervening motion to suppress, however, in October, 1954, and testimony in support thereof, she exonerated the defendant and claimed her first statement was procured by coercion and duress. This resulted in the filing of an information for perjury against the witness which, at the time of this trial, had been withdrawn. Her testimony at the trial constituted the sole direct evidence upon the charge against defendant.
On cross-examination, defense counsel sought to interrogate this witness concerning statements contained in the above mentioned motion to suppress and in testimony before the court in connection with that motion, in conflict with her trial testimony. While objections to such inquiries were varied and numerous, colloquy between court and counsel for the state and the defendant in fact constituting more than half the record, the significant issue presented on this appeal relates to the propriety of the court's ruling, directed to the defense counsel and repeated at several points, that 'If you wish to ask anything about the record, you will first have to file it in evidence in the case,' on the theory that the written transcript or record constituted the 'best evidence' of its contents.
The objections of counsel on the ground specified, directed as they were to efforts of the defense on cross-examination to obtain from the witness an admission or denial of the statements in question, should not have been sustained. The record indicates that defense counsel did, in the final analysis, adequately identify the time, place and circumstances of the statement in question, and did ultimately satisfy objections in this respect. The inquiries allowed were sufficient to apprise the jury of the fact that the witness had in fact on a prior occasion given contradictory testimony under oath, but objections were sustained on each occasion when attempts were made to put to the witness the specific questions asked and responses made.
It is said that the extent or volume of such inquiries should be subject to the control of the court, and that in the case of contradictory statements in writing or on public record the court may, in its discretion, permit the introduction of such document or record upon cross-examination out of the regular order of proof. Jones Commentaries, 2nd ed., Vol. 6, Sec. 2409. See, also, Williams v. State, Fla., 74 So.2d 797. But this rule clearly does not contemplate that the right to full and complete inquiry, as to all material portions of the contradictory matter, in the absence of some compelling circumstance, can be conditioned upon introduction of such documents in evidence at this point.
The statute provides in effect that proof of such inconsistencies cannot be made unless and until the witness is asked 'whether or not he made such statements' and answers in some fashion which 'does not distinctly admit that he has made such statement.' F.S. Sec. 90.10, F.S.A. A proper predicate for impeachment must, therefore, put before the witness the substance of the...
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...Wingate v. New Deal Cab Company, 217 So.2d 612 (1st D.C.A.Fla.1969), citing McCormack on Evidence, p. 63; See also Urga v. State, 104 So.2d 43 (2d D.C.A.Fla.1958). The entire question of prior contradictory statements, and their effect on the credibility of witnesses, and on the outcome of ......
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...'as a matter of right' to a transcript of statements of prosecution witnesses taken in the course of preparation for trial. Urga v. State, Fla.App.1958, 104 So.2d 43. See also: Raulerson v. State, Fla.1958, 102 So.2d 281 (statements of accomplices not on trial); Bedami v. State, Fla.App.195......
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Adjmi v. State, 66--873
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