DANIEL MAXWELL TOBEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel Maxwell Tobey was convicted of first degree murder and attempted first degree murder. On appeal, he challenged the prosecutor's cross-examination tactics, specifically the laying of predicate questions for prior inconsistent statements without calling corroborating witnesses and the prosecution's rehabilitation of its own witness before credibility was attacked.
The trial court erred in denying Tobey's motion to strike the prosecutor's questioning regarding inconsistent statements that were not subsequently proven through witness testimony. However, this error was harmless because the factual content of some statements was admitted by Tobey in other testimony and remaining statements were cumulative to overwhelming evidence of guilt. The prosecutor's rehabilitation of its witness on direct examination was permissible under the rationale in Bell v. State.
[1] A prosecutor must ask impeachment predicate questions in good faith, with the intent and ability to prove the witness made an inconsistent statement if the witness denies…
[2] Asking predicate questions for impeachment without calling witnesses to verify the statements constitutes a violation of the rule requiring good faith.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the predicate questions to impeachment must be asked in good faith, that is, with the intent and ability to later prove (if it is not admitted) that the witness gave some statement inconsistent with his or her present testimony”
Establishes the legal standard for proper cross-examination regarding prior inconsistent statements, requiring good faith intent to corroborate the statements through witness testimony
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring cross-examination, the prosecutor asked Tobey whether he had made various statements to several different persons. Although Tobey denied making…
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GRIMES, Acting Chief Judge.
In the course of cross-examining appellant, the prosecutor sought to lay the groundwork for impeachment by prior inconsistent statement when he asked appellant whether or not he had made various statements to several different persons. Even though appellant denied making the statements, the prosecutor did not call three of these persons on rebuttal to testify that the statements had been made to them. Appellant’s counsel then made a motion to strike the prosecutor’s questioning as it related to the references to these inconsistent statements. The court denied this motion.
The practice of laying a predicate for the introduction of prior inconsistent statements when the prosecutor has no intention of calling witnesses to verify that the statements were made was condemned in Marrero v. State, 478 So. 2d 1155 (Fla. 3d DCA 1985). As the court explained:
[T]he predicate questions to impeachment must be asked in good faith, that is, with the intent and ability to later prove (if it is not admitted) that the witness gave some statement inconsistent with his or her present testimony. The reason that such proof must be forthcoming is because the predicate question —e.g., “Didn’t you tell me ...?” or “Didn’t you say to so-and-so”—is itself testimonial, that is, the question suggests that there is a witness who can testify that such a statement was made. When this suggested witness is not actually called to give the impeaching testimony under oath, all that remains before the jury is the suggestion—-from the question —that the statement was made. When that occurs, the conclusion that must be drawn is that the question was not asked in good faith, and that the attorney’s purpose was to bring before the jury inadmissible and unsworn evidence in the form of his questions to a witness.
478 So. 2d at 1157.
The court should have granted appellant’s motion to strike. However, we have concluded that the failure to grant the motion constituted harmless error. The factual content of some of the statements was actually admitted by appellant in other portions of his testimony. The facts which could be inferred from the remaining statements were merely cumulative to the overwhelming evidence of guilt.
Appellant also contends that the prosecutor violated the rule of Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984), petition for review denied, 462 So. 2d 1108 (Fla.1985), by rehabilitating his own witness before the witness’s credibility had been attacked. The court permitted the witness to explain on direct examination why he had previously lied to the police. If this was error, it was less likely to be harmless because this witness was important to the state’s case. Nevertheless, we do not reach the question of harmfulness because we believe that the practice was appropriate under the rationale we expressed in Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985).
Appellant’s other points are without merit. We affirm his convictions of first degree murder and attempted first degree murder and the resultant sentences.
FRANK and HALL, JJ., concur.
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Cited By
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Carpenter v. State, 664 So. 2d 1167 (Fla. 4th DCA 1995)…ence in the form of his questions to a witness. Marrero, 478 So. 2d at 1157. The Marrero conclusion, which is that if the proof is not forthcoming it necessarily follows that the question was not asked in good faith, was followed in Tobey v. State, 486 So. 2d 54 (Fla. 2d DCA 1986), a case involving the same factual situation as the present case, i.e., the prosecutor asking the defendant whether he had made an incriminating statement to another person. This court, in Greenfield v. State, 336 So. 2d 1205 (Fl…
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Duncan v. State, 776 So. 2d 287 (Fla. 2d DCA 2000)…s, the conclusion that must be drawn is that the question was not asked in good faith, and that the attorney’s purpose was to bring before the jury inadmissi [*289] ble and unsworn evidence in the form of his questions to a witness. Tobey v. State, 486 So. 2d 54, 55 (Fla. 2d DCA 1986)(quoting Marrero v. State, 478 So. 2d 1155, 1157 (Fla. 3d DCA 1985)); but see Carpenter v. State, 664 So. 2d 1167 (Fla. 4th DCA 1995). While the instant case involves a situation where the prosecutor attempted to contradict th…
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Corrao v. State, 79 So. 3d 940 (Fla. 1st DCA 2012)…the conclusion that must be drawn is that the question was not asked in good faith, and that the attorney’s purpose was to bring before the jury inadmissible and unsworn evidence in the form of his questions to a witness.’ ” (quoting Tobey v. State, 486 So. 2d 54, 55 (Fla. 2d DCA 1986))). A prosecutor’s question not supported by the evidence can be highly prejudicial. See Hunter v. State, 973 So. 2d 1174, 1176 (Fla. 1st DCA 2007) (holding trial court should have granted Hunter’s motion for mistrial where pr…
Authorities Cited
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- Marrero v. State, 478 So. 2d 1155 (Fla. 3d DCA 1985)
- Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985)