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637 So. 2d 313

Pugh v. State

District Court of Appeal of Florida · decided 1994-05-24

Cited by 4 later decisions — most recently October 2012

4 state decisions

Key passage — most relied on by later courts

“[i]f a witness ... does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible”

quoted by 1 later decision, including 768 So. 2d 1129 - MBL Life Assur. Corp. v. Suarez

“he did not remember the questions he was asked nor the answers he gave during his deposition”

quoted by 1 later decision, including Pearce v. State

Relies on 491 So. 2d 1129 - State v. DiGuilio · 99 So. 2d 565 - McArthur v. Cook · 413 So. 2d 1204 - Fogel v. Mirmelli

Good law ✅— No negative treatment on recordhow we know

Decided 1994-05-24

View the full empirical analysis of this case →

GODERICH, Judge.

¶1In his pretrial deposition, William Cure testified that he identified the defendant as one of the four men in the Winn Dixie store, but that he did not see him actively participating in the robbery or holding a gun. At trial, however, William Cure changed his testimony and claimed that the defendant was directly involved in the robbery by holding a gun and ordering everybody to the ground.

¶2The jury found the defendant guilty of aggravated battery with a firearm and of four counts of robbery with a firearm. The trial court adjudicated the defendant accordingly and sentenced him. The defendant appeals his conviction.

¶3The defendant contends that the trial court erred in refusing to allow into evidence a portion of a pretrial deposition as a prior inconsistent statement to impeach William Cure, the key prosecution witness, on critical testimony. We agree.

¶4Section 90.614(2), Florida Statutes (1991), provides:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.

¶5During cross-examination, William Cure testified that he did not remember the questions he was asked nor the answers he gave during his deposition. He did not distinctly admit to making the prior inconsistent statement. Accordingly, under section 90.614(2), extrinsic evidence of this statement, which is contained in the transcript of the deposition testimony, is admissible. We find that the defendant should have been allowed to offer the inconsistent portions of William Cure’s deposition into evidence.

¶6We cannot agree with the state’s contention that the error was harmless where William Cure was the only witness to claim that the defendant was directly involved in the robbery and holding a gun. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Arthiee People, the general merchandise manager, testified that she saw four men wearing heavy coats in the store. She identified the defendant as being one of the men in the store. Trevor Flowers also saw four men enter the store wearing big jackets. He never saw the defendant with a gun and never saw him rob anyone. He added that the defendant was a regular customer of the store and would not rob it. Because the testimony of William Cure was critical to the state’s case, any attack on his credibility could have affected the verdict, and thus the error must be considered harmful. McArthur v. Cook, 99 So.2d 565 (Fla.1957); Fogel v. Mirmelli, 413 So.2d 1204 (Fla. 3d DCA 1982).

¶7Based on the foregoing, we reverse the defendant’s conviction and remand this case for a new trial.

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