It may then be viewed in WordPerfect with page numbering and footnotes as provided by the court. AG number: Jurisdiction: Florida Supreme Court. Date issued: March 6, Original file, if available:. During closing arguments, the prosecutor also asserted the content of the impeaching statements as proven facts. We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Alvin LeRoy Morton.
We have jurisdiction. Two other individuals, Chris Walker and Mike Rodkey, went with them to the house but did not enter. Morton carried a shotgun and one of the others possessed a "Rambo" style knife. They began looking around the living room for something to take when Bowers and Weisser entered the room from another area of the house.
Morton ordered the two of them to get down on the floor, and they complied. Bowers agreed to give them whatever they wanted and pleaded for his life but Morton replied that Bowers would call the cops. When Bowers insisted that he would not, Morton retorted, "That's what they all say," and shot Bowers in the back of the neck, killing him.
Morton also attempted to shoot Weisser, but the gun jammed. He then tried to stab her, but when the knife would not penetrate, Garner stepped on the knife and pushed it in. Weisser ultimately was stabbed eight times in the back of the neck and her spinal cord was severed. Before leaving the scene, either Garner or Morton cut off one of Bowers' pinky fingers. They later showed it to their friend Jeff Madden. Acting on a tip, police and firefighters went to the victims' residence, where the mattresses had been set on fire, and discovered the bodies.
Morton was later found hiding in the attic of his home. The murder weapons were discovered underneath Garner's mother's trailer. Morton later confessed to shooting Bowers and helping make the first cut on Weisser.
Morton was convicted on both counts of first-degree premeditated murder. The jury recommended death on both counts by a vote of With respect to Madeline Weisser only, the trial court also found that the murder was especially heinous, atrocious, or cruel, and that the defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.
In statutory mitigation, the trial court found 1 the defendant's age and 2 lack of significant history of prior criminal activity. However, the court gave both of these factors very little weight. In nonstatutory mitigation, the trial court found 1 the defendant's family background, 2 his mental problems, 3 the physical and mental abuse inflicted upon him by a parent, and 4 his voluntary confession and cooperation.
However, none of these factors was given much weight. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Morton to death for the murders of both victims. Morton contends that the trial court erred in permitting the prosecutor to repeatedly introduce out-of-court statements made by the State's own witnesses for the ostensible purpose of impeaching them with prior inconsistent statements.
The prosecutor obviously was hoping to elicit through the witnesses' testimony the same information that they had given in their earlier statements. While these witnesses substantially incriminated Morton, their responses were more vague in detail than the answers in their original statements.
Sometimes, the witnesses would admit that their recollection was refreshed and that the original statements were accurate. On other occasions, they would continue to profess a lack of recollection. When the latter occurred, the judge would instruct the jury that the evidence tending to impeach the witness was not being introduced to prove the truth of the matter asserted, but only as evidence of the witness's lack of credibility. The defense's objections to the continuing manner of impeachment were overruled.
During closing arguments in both the guilt and penalty phases, the prosecutor argued over defense objection that the content of the impeaching statements should be accepted as fact. Historically, in Florida a party could not impeach its own witness except where the witness proved to be adverse. A witness was considered adverse only where the party expected the witness to give favorable evidence and the witness surprised the party by giving evidence that was prejudicial to the party producing the witness.
Adams v. State , 34 Fla. By the adoption of section Jackson v. State , So. In , section The statute now reads in pertinent part: Who may impeach.
By its plain language, the statute now permits a party to impeach its own witness by introducing prior inconsistent statements without regard to whether the witness's testimony is prejudicial. While section Professor Ehrhardt explains: A prior statement of a witness is admissible to impeach credibility only if it is in fact inconsistent.
The prior statement should be admitted if the prior statement directly contradicts the testimony, or there is a material difference between the two. Whether the necessary inconsistency is present is a preliminary factual question for the court's discretion.
Charles W. A more difficult problem arises where, as often occurred in the instant case, a witness fails to bring out certain facts that the party calling the witness had hoped. When asked about giving a prior statement containing these facts, the witness does not deny having made the prior statement but asserts an absence of recollection of the facts in question.
If the statement containing those facts is read to the jury, the jury will learn of the facts through hearsay evidence which could not have been otherwise admitted. Even if the jury is instructed that the facts should only be considered for purposes of impeachment, it may be impossible for the jury to disregard these facts as substantive evidence. Thus, the impeachment which appears to be permitted under the literal wording of section There are no cases in Florida which directly address this problem in the wake of the amendment to section However, the federal courts have been addressing this matter for some time because Federal Rule of Evidence provides, without restriction, that the credibility of a witness may be attacked by any party, including the party calling the witness.
As the Federal Rules of Evidence Manual states: By its terms, Rule would appear to permit some abusive practices, such as the following hypothetical: A prosecutor calls a witness who has made a previous statement implicating the defendant in a crime; that statement would be excluded as hearsay if offered for its truth; the prosecutor knows that the witness has repudiated the statement and if called, will testify in favor of the defendant; nonetheless, the prosecutor calls the witness for the ostensible purpose of "impeaching" him with the prior inconsistent statement.
The reason that this practice appears abusive is that there is no legitimate forensic purpose in calling a witness solely to impeach him. If impeachment were the real purpose, the witness would never be called, since the most that could be accomplished is a net result of zero.
As one Court put it: "The maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer. Saltzburg et al. Illustrative statutes allowing a party to impeach his own witness under varying circumstances are Ill. Laws Annot. Complete judicial rejection of the old rule is found in United States v.
Freeman, F. See also New Jersey Evidence Rule The language of Rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.
These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Please help us improve our site! No thank you.
Who May Impeach a Witness.
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