Nelson v. StateNelson v. State
Jimmy Nеlson appeals a judgment and sentence adjudicating him guilty of grand theft. His appeal is based upon contentions that his trial was flawed by the trial court‘s denial of his right to cross-examination of prosecuting witnesses to show their motives or interest in the outcome of the case, adverse to him; and he further argues that he was denied due process of law by the trial court‘s error in permitting the State‘s recross-examination of appellant concerning his conviction of specific crimes. He also contends that the trial court committed reversible error by refusing a requested jury instruction on penalties for the offenses of which he was subject to сonviction. We find no error and affirm.
During Nelson‘s trial for grand theft of clothing from a Montgomery Ward department store, Nelson‘s attorney on cross-examination addressed the following question to the witness Ms. Antzakas, a store detective who had been instrumental in procuring Nеlson‘s arrest on the charge:
Mr. [sic] Antzakas, two brief questions, as an employee of Montgomery Ward‘s, if you stopped someone and in fact there is shown to be no probable cause, are you or are you not and the store personally and civilly liable... .
The trial judge sustained the State‘s objection to the above question. A similar question was addressed to the arresting officer, Speiser, a security officer employed by the mall where the Montgomery Ward‘s store is located.1 Again the trial judge sustained the State‘s objection.
We agree with the statement of the Florida Supreme Court in Wallace v. State, 41 Fla. 547, 26 So. 713 (1899):
For the purpose of discrediting a witness, a wide range of cross-examination is permitted, as a matter of right, in regard to his motives, interest, or animus, as connected with the сause or with the parties thereto... .
Denial of the full right of cross-examination of a principal State witness has been held to be harmful error. Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973); Kirkland v. State, 185 So.2d 5 (Fla. 2nd DCA 1966); Coxwell v. State, 361 So.2d 148 (Fla. 1978). It has also been held, however, that the defendant does not have the unrestricted right to cross-examine adverse witnеsses on any matter desired. Initially the cross-examination must be shown to be relevant. The determination of relevancy is within the discretiоn of the trial court... . Skinner v. Cardwell, 564 F.2d 1381 (9th Cir.1977), cert. den. 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978); and see Maycock v. State, 284 So.2d 411 (Fla. 3rd DCA 1973).
Upon review of the question propounded to the witnesses, in the light of the authorities cited, we conclude thаt the error, if any, in denial of the right to ask the
On the second issue, appellant‘s claim of improper cross-examination concerning cоnviction of specific crimes, we note initially that on cross-examination appellant acknowledged that he had prеviously been convicted of a crime six times. Upon again being questioned as to the number of convictions, appellant statеd: “Three misdemeanors, one felony. Not six times I don‘t think.” On redirect examination by his counsel, appellant stated that he had never been tried by a jury before. He stated further that on his previous convictions he had pleaded guilty because he was guilty; that he had not pleaded guilty in this case, because he was not guilty. Upon recross-examination the State Attorney was permitted to ask apрellant to name the three misdemeanors of which he had been convicted. His counsel‘s timely objection was overruled. Upоn answering, appellant stated that not all the prior offenses were for petty theft. Then the State Attorney asked the following question:
Q. But, you stole something from a store didn‘t you, and you have done it twice before, haven‘t you?
Upon objection, the court responded: “That‘s going too far.” Appellant‘s counsel immediately moved for a mistrial, arguing that the testimony was beyond the scope of recross-examination, and constituted improper use of Williams rule testimony. The court denied the motion.
This court in Harmon v. State (Fla. 1st DCA 1980), Case No. LL-336, Opinion filed May 9, 1980, recently pointed out the improрriety of prosecutorial overreaching by improper references to collateral crimes. However, in that case the court reversed upon other grounds, and it also appeared that the improper questions were not timely objeсted to. It has long been the law of this State that an attack upon the credibility of a witness by means of “other crimes” evidence is limited to the question whether the witness has been convicted of a crime. If the conviction is admitted, the inquiry may not be pursued to the point of naming the crime of which he was convicted. McArthur v. Cook, 99 So.2d 565 (Fla. 1957). We find no error in this instance, however, because appellant‘s own counsel “opened the door” to further examination regarding his specific crimes by his additional questions on redirect examination eliciting from appellant the self-serving declarations that he had “pled guilty” to the other crimes because he was guilty, but that he pleaded not guilty in the instant case, because he was not guilty. Under the circumstances, it was permissible for the State to inquire further as to the type of crimes defendant admitted being guilty of in the past. See Dodson v. State, 356 So.2d 878 (Fla. 3rd DCA 1978).
As to the third point, the trial court‘s refusal to instruct on penalties for offеnses, we adhere to our ruling in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978) (cert. pending, Case No. 55,394, Florida Supreme Court).
McCORD and WENTWORTH, JJ., concur.
OPINION ON REHEARING
LARRY G. SMITH, Judge.
In our opinion filed May 30, 1980 we adhered to this Court‘s ruling in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), and found no reversible error in the trial judge‘s refusal to instruct penalties for the offenses.
Upon review of the record we conclude the point was properly preserved for review by appellant, and we are therefore compelled tо apply the law as announced by our Supreme Court.
Accordingly, the judgment of conviction is reversed, and this cause is remanded for new trial.
McCORD and WENTWORTH, JJ., concur.