Cooper v. State

May 12, 1987
No. 85-929
Reporters:
, ,
Before:
Hendry
PER CURIAM.

Contrary to the holding in State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986), approving Delgado-Santos v. State, 471 So.2d 74 (Fla. 3d ‍​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​​​‌​‌‌‌​‌​‌‌​​‌​​​‌​​​​​​​‌​​‌‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​​​‌​‌​​​‌​‌​‌‌​​​‌‌​‌‌‌‍DCA 1985),1,2 a highly inculpato-ry sworn statement given to police investigators by a key witness, the defendant‘s daughter, which was inconsistent with her trial testimony,3 was introduced as substantive evidence against him ‍​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​​​‌​‌‌‌​‌​‌‌​​‌​​​‌​​​​​​​‌​​‌‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​​​‌​‌​​​‌​‌​‌‌​​​‌‌​‌‌‌‍in his second degree murder trial. Because we cannot agree with the state either that this clear error was not properly preserved below or that it was merely harmless, a ‍​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​​​‌​‌‌‌​‌​‌‌​​‌​​​‌​​​​​​​‌​​‌‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​​​‌​‌​​​‌​‌​‌‌​​​‌‌​‌‌‌‍new trial is required.

Reversed and remanded.

Notes

. Delgado-Santos was decided after the trial of this case.

. See also Tisdale v. State, 498 So.2d 1280 (Fla. 4th DCA 1986).

. The witness had been called as a “court’s ‍​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​​​‌​‌‌‌​‌​‌‌​​‌​​​‌​​​​​​​‌​​‌‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​​​‌​‌​​​‌​‌​‌‌​​​‌‌​‌‌‌‍witness” and denied knowledge of the crime; she was then impeached with the prior statement. Since there was no objection to these aspects of the procedure employed below, we do ‍​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​​​‌​‌‌‌​‌​‌‌​​‌​​​‌​​​​​​​‌​​‌‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​​​‌​‌​​​‌​‌​‌‌​​​‌‌​‌‌‌‍not pass upon their propriety. But cf. Jackson v. State, 498 So.2d 906 (Fla.1986); Parnell v. State, 500 So.2d 558 (Fla. 4th DCA 1986).