County Case No.MM99-05681A-XX
Appeal No. BB-46
March 24, 2000

PATTY CLEMONS LUNSFORD

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

___________________________

This is an appeal from the county court of Polk County, Judge Steven Selph presiding. A jury convicted Appellant, Patty C. Lunsford, of battery in violation of section 784.03, Florida Statutes (1999). She seeks reversal of the trial judge’s ruling on the use of a prior inconsistent statement. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is reversed, and this cause remanded.

The state charged Appellant with domestic violence after a June 12, 1999 altercation in the home of her live-in boyfriend, Jack Harris. Harris, one of two prosecution witnesses, testified on cross-examination that Appellant "does quite a bit of drinking and she appeared to me to be very intoxicated," during the attack. (R. at 32) Defense counsel and Harris then had the following exchange:

Q. Do you remember speaking with Charity Lanier, who works for my office? It would have been on June 16^th.

A. I don’t recall that, no.

Q. Okay. Do you recall talking with anybody, other than the police, about the time of the incident?

A. No.

Q. So you don’t remember telling Ms. Lanier that you don’t [sic] think that she had been drinking that day?

Id. At this point, the state objected and the trial judge called a sidebar. Defense counsel argued that the question was valid because it showed a prior inconsistent statement. The state argued that the statement to Ms. Lanier was inadmissible hearsay because it was offered for the truth of the matter asserted. The state further argued that defense counsel needed to establish an exception to the hearsay rule before the statement could be admitted. The trial judge sustained the objection. He advised defense counsel that she could bring Ms. Lanier to testify during the defense portion of the trial. The judge instructed the jury to disregard the question and the trial proceeded. The defense’s case in chief consisted of Appellant’s testimony. The jury convicted Appellant of battery.

At issue in this appeal is whether the trial judge erred by restricting cross-examination of a witness on the issue of his credibility. The admissibility of evidence to impeach a witness is within the exclusive discretion of the trial judge. Mungin v. State, 147 So. 577, 578 (1933). Such decisions may be overturned only upon a showing of clear legal error. Id. A party may impeach the credibility of an adverse witness with that witness’s prior inconsistent statements. Kimble v. State, 537 So. 2d 1094, 1096 (Fla. 2d DCA 1989). When laying the predicate for impeachment, counsel must advise the witness of the time place, and to whom the prior statement was spoken. Kimble, 537 So. 2d at 1096. Counsel must also present the substance of the statement. Id. The statement may be unsworn, and need not be reduced to writing. Id.

In the matter before this court, state’s witness Harris testified that he believed Appellant was drunk when she attacked him. Defense counsel then cross-examined Harris about a conversation with an investigator on June 16^th regarding Appellant’s sobriety at the time of the incident. Harris testified that he did not recall having spoken with anyone other than police. Defense counsel then asked the witness whether he remembered telling the investigator that Appellant had been drinking that day. Before the witness answered, the trial judge sustained the state’s hearsay objection.

Appellant argues that the right to full and fair cross-examination allows counsel to impeach a witness using prior inconsistent statements. In support of her position, Appellant cites Coco v. State, 62 So. 2d 892 (Fla. 1954)(upholding a defendant’s absolute right to full cross-examination); Salter v. State, 382 So. 2d 892 (Fla. 4^th DCA 1980)(holding that trial court erred by restricting cross-examination); and Pitts v. State, 315 So. 2d 531 (Fla. 2d DCA 1975)(holding that to exclude testimony of a witness’s reputation for truth and veracity is reversible error). On appeal, the state argues that the defense failed to impeach the witness because they never offered the investigator’s testimony. The state further argues that the statement was not made available, and Ms. Lanier was not on the witness list.

On facts very similar to those before this court, the Second District Court reversed a ruling which sustained an objection before a proper predicate could be laid. Kimble, 537 So. 2d at 1096. In Kimble, questions regarding the time, place, and circumstances of the prior statement were asked and answered. Id. However, before counsel could confront the witness with his actual statement, the state objected. Id. The court held that by sustaining the objection, the trial court improperly restricted trial counsel’s attempt to lay a foundation for impeaching the witness. Id. See also Williams v. State, 472 So.2d 1350, 1352 (Fla. 2d DCA 1985)(holding that trial court should allow wide latitude to test witness’s perception and memory).

Based on the exchange cited above, the trial judge concluded that a proper predicate had

been established. (R. at 34). After sustaining the state’s hearsay objection, the trial judge advised defense counsel that the statement might be considered admissible if the investigator testified. That analysis was erroneous. A careful review of the trial transcript shows that although Harris responded to questions regarding the circumstances of the statement, the state objected before Harris could respond to the question that presented the substance of his statement to the investigator. To establish the proper predicate for impeachment, Harris needed the opportunity to admit or deny the statement. Kimble, 537 So. 2d at 1096. The defense could proffer extrinsic evidence only after Harris had been informed of the substance of the statement, the time and place of the conversation, and to whom the statement was made. Id. and § 90.641(2), Fla. Stat., (1999). Moreover, Harris was one of two prosecution witnesses, and the only witness, besides Appellant herself, who testified directly of the attack. Thus, the trial judge erred by restricting cross-examination of Harris on the issue of his credibility.

For the foregoing reasons, it is ORDERED that the ruling of the county court is REVERSED and REMANDED.

ORDERED 24 March 2000.

Charles B. Curry

Chief Judge