Bobb v. StateBobb v. State
Appellant, Terrance Bobb (defendant), appeals his conviction and sentence for manslaughter without a firearm. Defendant contends on appeal that his conviction should be reversed because the trial court prevented additional cross-examination of a prosecution witness concerning how many of the witness‘s felony convictions involved dishonesty or false statement. We affirm defendant‘s conviction because we find that the trial court properly limited cross-examination to whether the witness had been convicted of a felony and the number of felony convictions.
A key prosecution witness had been convicted of eleven felonies, six of which were crimes involving dishonesty or false statement: two for dealing in stolen property and four for grand theft. Prior to trial, defense counsel requested that he be permitted to question the witness on the number of his felony convictions and, of those felonies, how many were for crimes involving dishonesty or false statement. In denying defendant‘s request for this more extensive inquiry of the witness, the trial court ruled that there are two permissible inquiries under
A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment... .
While a literal reading of the subsection would allow inquiry into whether any of the felony convictions involved dishonesty or false statement, we agree with the trial court that it is preferable to limit questioning to whether the witness or defendant has ever been convicted of a felony and not permit additional inquiry into whether the felony involved dishonesty or false statement. This holding is consistent with the long-standing policy of the courts of this state not to allow inquiry for impeachment purposes into the nature of the crime for which the defendant or witness was convicted. See Watts v. State, 160 Fla. 268, 272, 34 So.2d 429, 431 (Fla. 1948); Davis v. State, 397 So.2d 1005, 1007-08 (Fla. 1st DCA 1981).
The sole purpose of impeachment by prior convictions is to attack credibility or believability of the witness. As noted by Charles Erhardt in his comments to
Prior to the enactment of the Florida Evidence Code, evidence of a conviction of “any crime,” excluding certain minor offenses such as traffic offenses, was admissible for impeachment purposes. See State v. Page, 449 So.2d 813, 815 (Fla. 1984); Hendrick v. Strazzulla, 135 So.2d 1 (Fla. 1961); Watts;
In 1977, the Florida Evidence Code was enacted and
Despite this expressed written legislative intent to restrict the types of crimes utilized for impeachment purposes, the very next year the legislature, without explanation, expanded
The effect of the subsection, as amended by the legislature and as adopted by the supreme court, is to allow impeachment for all felonies, but restrict impeachment to only those misdemeanors involving dishonesty or false statement. Thus,
In its revised form the section allows the use of all crimes punishable by imprisonment in excess of one year or by death. Serious crimes are now encompassed by the statute and specifically permitted whether or not they involve dishonesty or false statement. It is only misdemeanor crimes which must fulfill that criteria. Because these are relatively minor offenses, the additional safeguard of requiring them to reflect upon the defendant‘s truth or veracity is necessary to avoid undue prejudice to the defendant... .
The subsection makes no distinction as to categories of felonies, but limits use of misdemeanors to the category of ones involving dishonesty or false statement. We believe that allowing further inquiry into whether the felony involved dishonesty or false statement would have the impermissible and unintended effect of elevating certain felonies over others. In essence, we would be approving a more extensive cross-examination of one who has been convicted of grand theft, a felony involving dishonesty, than one convicted of murder, a felony not involving dishonesty or false statement. We cannot read into the statute or the subsection, as adopted by the supreme court, an intent to depart from the long-standing practice of restricting inquiry into the nature of the offense. Accord Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982).
In Davis, the first district rejected a literal reading of
Likewise, authorizing a prosecutor or defense lawyer to ask the more detailed question concerning whether the felony convictions involved dishonesty or false statement could create an inference that the crime was one such as perjury, requiring a defendant or witness to explain the nature of the crimes to dispel any contrary inference.2 This is especially true in light of the broad interpretation our supreme court has given to the terms “dishonesty or false statement.” Page.3
Defendant cites Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), as authority for his argument that he should have been permitted further inquiry concerning the nature of the witness‘s felony convictions to
If the witness admits the number of his convictions, the prosecution may not ask further questions regarding prior convictions, and in particular the prosecution may not question the witness as to the nature of the crimes. The defendant may voluntarily reveal the nature of any crime, but the prosecution must not invite him to volunteer. If the witness denies a conviction, the prosecution can impeach him by introducing a certified record of that conviction, which will necessarily reveal the nature of the crime. Goodman, supra; Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976). The enactment of
Section 90.610(1) does not affect the rules governing the elicitation of the nature of a prior conviction.
The second question which we found to be proper in Cummings was, “Have you ever been convicted of a crime involving dishonesty or false statement?” We did not discuss when the question should be properly asked. The question is asked not to define the nature of the felonies but to limit the use of misdemeanor convictions to those involving dishonesty or false statement. While our opinion in Cummings did not specify whether this second question should be asked only if the defendant or witness had misdemeanor convictions involving dishonesty or false statement, we clarify our position by holding that the second Cummings question is intended to have this limited application. We would suggest, as the trial court indicated here, that the more direct question to ask in the case of defendants or witnesses convicted of misdemeanors involving dishonesty or false statement should be, “Have you ever been convicted of a misdemeanor involving dishonesty or false statement?”4
Defendant asserts that it is the dishonest nature of the act which gives the conviction its probative value for impeachment. We agree with his general statement, but with the caveat that it is the same reason we allow impeachment for all felony convictions. Even our standard jury instructions provide only that whether “the witness had been convicted of a crime” is among multiple factors to be considered in evaluating the credibility of a witness. Fla.Std.Jury Instr. (Crim.) 2.04.
This particular witness had broken the law eleven times, which resulted in eleven felony convictions. The jury heard this evidence both on direct and cross-examination. Defendant argues that because six of the eleven felonies involve dealings in stolen property and grand theft, the witness was a “dishonest felon,” somehow implying that other felons are “honest felons.” We do not agree that the trial court‘s restriction improperly deprived the jury of information essential to evaluate the witness‘s credibility or denied defendant meaningful confrontation. Compare Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). We find defendant‘s argument even less compelling
The jury‘s knowledge that the witness was an eleven time convicted felon is certainly powerful impeachment without further embellishment. We fail to see how defendant was prejudiced by this limitation. Indeed, we envision far more potential for abuse if the interpretation of the subsection urged by defendant is adopted and applied to cross-examinations of both witnesses and defendants.
We have considered and reject the other points raised on appeal. Accordingly, the conviction and sentence is affirmed.
GUNTHER and STEVENSON, JJ., concur.