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Walker v. State

District Court of Appeal of Florida, Fifth District
Oct 23, 1986
495 So. 2d 1240 (Fla. Dist. Ct. App. 1986)

Summary

holding that evidence that defendant had lied to police to defeat or avoid prosecution was admissible as showing consciousness of guilt

Summary of this case from Burkell v. State

Opinion

No. 85-1830.

October 23, 1986.

Appeal from the Circuit Court, Orange County, Michael F. Cycmanick, J.

James B. Gibson, Public Defender, Michael L. O'Neill, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.


The defendant claims the trial court erred in denying his motion for a mistrial made when the state attorney, in opening statement to the jury, referred to the fact that the defendant had told a police officer that at the relevant time he was drinking with his sister and her boyfriend and that the defendant's mother had sworn that at the same time the defendant was asleep at home. The defendant argues that this reference prejudiced his right to a fair trial because it forced him to call his sister and her boyfriend as alibi witnesses and violated his due process rights by shifting the burden to him to prove his innocence. We disagree and affirm.

In his opening statement, a party is limited to a discussion of facts which he intends in good faith to substantiate by testimony or other evidence in his case-in-chief. Juhasz v. Barton, 146 Fla. 484, 1 So.2d 476 (1941); Spaziano v. State, 429 So.2d 1344 (Fla. 2d DCA 1983). Here, the evidence of defendant's false statements came in when counsel for defendant was cross examining one of the state's witnesses. If defendant had not brought this information out on cross examination, the state had the obligation to substantiate the assertion it had made in opening statement. Once counsel for defendant brought this fact out, however, the state was not required to offer further proof.

Evidence of a defendant's acts or statements calculated to defeat or avoid prosecution is admissible against him as showing consciousness of guilt. Douglas v. State, 89 So.2d 659 (Fla. 1956); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980), and cases collected therein. The state was entitled to present evidence that the defendant had lied about his whereabouts at the time of the crimes in question because such false exculpatory statements are admissible in the state's case as substantive evidence tending to affirmatively show a consciousness of guilt on the part of the defendant. See 2 Wigmore, Evidence § 278 (Chadbourne Rev. 1979); 1 Wharton's Criminal Evidence § 218 (13th Ed. 1972).

In view of this admissible evidence, if the defendant felt he should call his sister and her boyfriend as alibi witnesses that was a decision for the defense to make. The defendant, not the state, caused himself this dilemma by making his statement to the police officer.

AFFIRMED.

UPCHURCH, C.J., and SHARP and COWART, JJ., concur.


Summaries of

Walker v. State

District Court of Appeal of Florida, Fifth District
Oct 23, 1986
495 So. 2d 1240 (Fla. Dist. Ct. App. 1986)

holding that evidence that defendant had lied to police to defeat or avoid prosecution was admissible as showing consciousness of guilt

Summary of this case from Burkell v. State

determining that the State was entitled to present evidence that the defendant had lied ... such false exculpatory statements are admissible in the state's case as substantive evidence tending to affirmatively show a consciousness of guilt on the part of the defendant

Summary of this case from State v. Martin
Case details for

Walker v. State

Case Details

Full title:JOHN LEE WALKER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Oct 23, 1986

Citations

495 So. 2d 1240 (Fla. Dist. Ct. App. 1986)

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