Eddie Murphy has a classic rant about being caught cheating. He’s trying to convince his wife that she really didn’t see him having sex with another woman; “who are you going to believe, me, or your own eyes?” (saw Eddie on his excellent “Raw” tour, remember those days, when comedians were rock stars?) This same sort of logic is utilized by prosecutors, they want you to believe the cops that arrived later at the scene, but not believe an eyewitness who hurts their case.
Let’s face it, evidence gets filtered and manipulated by law enforcement before it ever reaches the court system. And, as tempting as it is, I can’t blame the prosecutors for this up front manipulation–they’re just drinking the Cool-Aid handed to them by the cops. I’ve experienced this first hand (this won’t be a long war story, I promise). Years ago I witnessed a first degree life felony right before my eyes. There were four other witnesses. The police handed each of us witness statement forms, and after a briefing by the cops as to what we should write, we all started writing. Immediately, several witnesses asked the group what they saw, and what they should write. Naturally, I told them to shut their pie hole and only write down only what they saw. I said it politely, of course, as polite as “pie hole” can sound.
Here’s the thing. My witness statement favored the defendant in the case. My witness statement described some “unnecessary roughness” by the police. And, as you might expect, my statement never made it to the state attorney’s office. It disappeared. Gone. I doubt my statement ever made it to the police station, it was probably deposited in a Dunkin’ Donuts trashcan somewhere in Orlando. I had a case recently in which the police told a few witnesses to leave the scene–without ever taking down their statement–because the cops knew that these witnesses would testify to things not favorable to their case. And, good luck tracking down witnesses who have been dismissed at the scene. What you’re left with is only the facts that the police want you to hear.
So, what happens when a witness, upon sober reflection, decides that her statement is simply inaccurate? She can recant the testimony, right? Well, yes, but that’s not going to sit well with the prosecutor. That’s just what happened in Felton v. State, 120 So. 3d 126 (Fla. 4th DCA 2013).
Felton was convicted of battery and robbery after a jury trial. His cousin was an eyewitness to the crime, and she signed a statement explaining that Felton beat up someone, and then robbed them. Nice guy. Later, the cousin became uncooperative, refusing to appear at various court functions. The state feared their case would evaporate without the cousin, so they applied for a material witness warrant; a fancy way of asking the judge to arrest a witness and hold them in jail until they testify. The judge granted a writ of bodily attachment for the cousin, and Felton’s cousin remained in jail pending her testimony at trial. The defense attorney wisely had the inmate/cousin proffer some testimony before the trial, to prove to the judge that she has recanted her statement.
When the cousin finally did testify at trial, she said nothing helpful to the state. But the prosecutor didn’t care, as he was only interested in getting her previous statement before the jury. The cousin explained that it was not her handwriting in the statement, and not her signature on the statement. The prosecutor then called the deputy who also signed the statement, and who watched her make the statement, so the judge permitted it to be admitted into evidence. The defense attorney objected, explaining to the court that the prosecution “can’t call a witness for the sole purpose of impeachment”. Id. Did the judge make the right call on this, allowing a witness to testify that had nothing to say except to deny the accuracy of a previous statement?
Our Florida Supreme Court addressed this very issue in Morton v. State, noting “if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded.” 689 So. 2d 259, 264 (Fla. 1997). Now, there’s an exception to this rule. If the prosecutor is “surprised” by the witness’ testimony, then calling her as a witness is permitted. Oddly enough, that’s exactly what the trial judge said in Felton’s case.
When the defense attorney raised the objection above, the judge responded that “her testimony was a surprise; the sole purpose of putting her on the stand was not to impeach her, and so I’ll overrule that objection.” Really? The state was surprised? Is this the same state that requested the extreme measure of having their own witness arrested to ensure her appearance? Is this the same state that heard the cousin testify right before trial that she did not remember writing the statement?
Thankfully, the appeals court had a better grasp of the law than the trial court. They reversed Felton’s conviction and returned the case for a new trial, holding that “the prosecutor did not call [the cousin] with any reasonable expectation that she would testify to something helpful to his case, aside from the prior inconsistent statement.” Id., citing Ruff v. State, 31 So. 3d 833, 838 (Fla. 4th DCA 2010). These sort witness issues can be tricky. Compare this result to the decision reached in McNeal v. State, 2013 WL 709567 (Fla. App. 1st DCA 2013), and check out my article “Recanted Testimony in Battery Cases“.