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Conviction for lewd and lascivious molestation and exhibition

Conviction for lewd and lascivious molestation and exhibition against a minor victim is reversed because the prosecutor used improper cross-examination to obtain conviction.

In Hernandez v. State, 31 So. 3d 873 (Fla. 4th DCA 2010), the appellate court reviewed convictions of lewd or lascivious molestation and lewd or lascivious exhibition involving a minor.

The issue that caused the Fourth District Court of Appeal to reverse was improper cross-examination.

The state called the defendant's wife as a witness. Defense counsel advised the court and the prosecutor that the witness should not be called because the witness told defense counsel that she was going to deny that her husband ever confessed to the crime. The state never deposed the witness. However, it had a tape recording of the wife talking with the victim. The prosecutor stated that his good faith basis for calling the defendant's wife was that she stated on the tape that the husband admitted to the molestation. When the state examined the defendant's wife she denied saying that the defendant admitted the molestation. The state then played the tape recorded conversation between the victim and the defendant's wife.

The wife testified that she did not remember the conversation and that her husband never made the admission. She testified that she must have been referring to the person that molested her as a child.

This testimony was first presented outside the presence of the jury as a proffer. The trial court allowed the taped statement to be admitted as a past recollection recorded. Defense counsel again objected to the tape being admitted under that exception to the hearsay rule citing a lack of predicate or foundation.

The appellate court considered the Florida Evidence Code provision dealing with recorded recollection which is Fla. Stat. $ 90.803(5). This provides an exception to the hearsay rule when a witness cannot recall matters of which she previously had knowledge. If the proper foundation is established, a tape recorded statement may qualify as a past recollection recorded. See, Montano v. State, 846 So. 2d 677, 680-81 (Fla. 4th DCA 2003). The court noted that to be admitted into evidence, the past recollection recorded must be offered by the witness who is either devoid of a present recollection, or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection to refresh memory. The court cited toKimbrough v. State, 846 So. 2d 540, 543 (Fla. 4th DCA 2003).

Kimbrough also sets forth that the witness must be able to assert at the time of testimony that the record correctly represented her knowledge and recollection at the time of making. Kimbrough 846 So. 2d at 543. The court in Hernandez also cited to Wigmore Evidence $ 734,746(2). In Montano at 846 So. 2d 681-682, the court noted that the tape recorded statement was improperly admitted under the recorded recollection exception to the hearsay rule because the witness did not acknowledge it's accuracy at trial.

In Hernandez, the court recognized that the witness (the defendant's wife) was unable or unwilling to attest to the accuracy of the taped conversation. For this reason, the state was not able to show that it could introduce the document as a past recollection recorded.

The court then turned to whether the tape recording was admissible as a form of impeachment. Florida Evidence Code $ 90.608(1) provides that a party, including the party calling a witness, may attack the credibility of a witness by introducing statements of the witness which are inconsistent with the witness' present testimony.

This is another common use of prior statements of a witness. The Florida Supreme Court, however, in the case of Morton v. State, 689 So. 2d 259 (Fla. 1997) receded from on other grounds, Rodriguez v. State, 753 So. 2d 29 (Fla. 2000), recognized that the risk of abuse is great when the prosecutor calls a witness who previously gave a statement implicating the defendant but then repudiated that statement. In, Batson v. State, the court stated:

Where a prosecutor knows that the witness' testimony at trial will be favorable to the defendant but, nonetheless, calls the witness for the purpose of impeaching [her] with [her] prior statement, the practice may be considered abusive because there is no legitimate forensic purpose in calling the witness solely to impeach him.

761 So. 2d at 1169 (Fla. 4th DCA 2000)

TheHernandez case cited to the Florida Supreme Court's decision in Morton where the court noted that it is improper for a party to knowingly call a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible impeachment.

It must be remembered that impeachment except under certain circumstances is not evidence but rather is a form of discrediting the witness. Impeachment by referring to a prior statement, is not evidence that the jury can consider on the issue of guilt unless it falls under an exception such as a statement of a party. It is recognized, however, that jurors hearing such impeachment testimony will have a hard time separating its true purpose (ie. discrediting the witness) and instead may consider the prior statement as direct proof of guilt.

The court then noted that the Fourth District Court of Appeal had adopted the Third District's expanded explanation of primary purpose in the case of State v. Richards, 843 So. 2d 962 (Fla. 3d DCA 2003). The court in Richards set forth:

Application of "mere subterfuge" or "primary purpose" doctrine focuses on the content to the witness' testimony as a whole. If the witness' testimony is useful to establish any fact of consequence significant in the context of the litigation the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to. In the words of one commentator the pivotal question is whether the "party [is] calling a witness with a reasonable expectation that the witness will testify [to] something helpful to the party's case aside from the prior inconsistent statement.

Ruff v. State, 31 So. 3d 833, 837 (Fla. 4th DCA 2010).

In Hernandez, the appellate court wrote that a review of the entire testimony reflected that the defendant's wife's testimony was useful only for the introduction of the prior inconsistent statement. The court noted that there was no surprise because defense counsel advised the prosecutor and the trial court that the wife would deny that the defendant ever admitted to the allegations in the case.

The court reversed the conviction because it could not say beyond a reasonable doubt that the admission on the tape containing the witness' prior inconsistent statement did not contribute to the jury's verdict.

Counsel should be on guard for the admission of such damaging testimony and ensure that proper objections are made to protect the defendant from the effects of such evidence which is otherwise inadmissible.

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