39 Fla. L. Weekly D611a
defense counsel brought out in cross-examination of law enforcement officer that
defendant had made no admissions, door was opened for state to impeach defendant
with his prior convictions — Trial court erred in allowing state to introduce
certified copies of defendant’s prior convictions instead of merely informing
jury about the number of prior convictions without waiting to find out if
defendant would testify, and without giving instruction to jury that it was to
consider the convictions in determining defendant’s credibility, not his guilt
— Further, the probative value of the convictions did not outweigh the danger
of unfair prejudice to defendant
District. Case No. 2D12-897. Opinion filed March 21, 2014. Appeal from the
Circuit Court for Hillsborough County; Gregory P. Holder, Judge. Counsel: Howard
L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public
Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee,
and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
sentences for possession of cocaine and possession of drug paraphernalia. We
agree with Mr. Mathis that the trial court erred in admitting into evidence
certified copies of his previous convictions and sentences, and we reverse.
police were executing a search warrant at a residence, they found Mr. Mathis
inside the residence and arrested him for possessing cocaine and drug
paraphernalia. The defense attorney asked the officer on cross-examination if he
had spoken with Mr. Mathis on the day of his arrest. When Officer Barlett
answered in the affirmative, the defense attorney asked, “And during that
conversation he never made any admissions to you; Mr. Mathis?” Officer Barlett
testified, “That is correct.”
defense had introduced exculpatory testimony during the cross-examination of
Officer Barlett, it was entitled to introduce into evidence certified copies of
Mr. Mathis’s eight prior felony convictions and one prior conviction for a crime
involving dishonesty. The trial court agreed with the State and admitted the
certified copies into evidence.
exculpatory. We disagree. The cross-examination established that Officer Barlett
had a conversation with Mr. Mathis after his arrest for possession of cocaine
and paraphernalia, which were found in common areas of the home, and Mr. Mathis
presumably denied that the drugs belonged to him. Similarly, in Freeman v.
State, 74 So. 3d 123, 125 (Fla. 1st DCA 2011), the defense attorney asked if
Freeman “denied everything” after being read Miranda1 and the detective agreed. The First District held
that Freeman offered the statement to show that he was not involved in the
crime, and therefore, he “opened the door for the State to impeach him with his
prior convictions.” Id. at 125-26. Here, the trial court did not abuse
its discretion in determining that Mr. Mathis opened the door for the State to
impeach him with his prior convictions because he offered the statement to show
that it was his contention on the day of the arrest that the cocaine and
paraphernalia did not belong to him. See Stallworth v. State, 53
So. 3d 1163, 1165 (Fla. 1st DCA 2011) (noting that a trial court’s decision
concerning the questioning of a witness about prior convictions is reviewed for
abuse of discretion).
in admitting the certified copies of the prior convictions and sentences.
Section 90.806(1), Florida Statutes (2011), provides that “[w]hen a hearsay
statement has been admitted in evidence, credibility of the declarant may be
attacked and, if attacked, may be supported by any evidence that would be
admissible for those purposes if the declarant had testified as a witness.” When
a witness testifies, his or her credibility may be attacked “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 . . . or if the crime involved
dishonesty or a false statement.” § 90.610(1). But when a witness is questioned
about his or her prior convictions pursuant to section 90.610, the questioning
is usually limited to the existence and the number of prior convictions unless
the witness answers untruthfully. Fotopoulos v. State, 608 So. 2d 784,
791 (Fla. 1992).
Supreme Court held that “section 90.806 permits the introduction of a
defendant’s felony convictions when the defendant elicits his or her own
exculpatory, hearsay statement through another witness at trial.” However,
unlike the present case, the certified copies of the convictions and sentences
were not introduced into evidence in Huggins. In Huggins, the
trial court informed the jury about the appellant’s nine previous felony
convictions, but it did not specify the nature of the crimes, and the trial
court gave the jury a limiting instruction relating to the jury’s use of the
information. Id. at 754; see also Moore v. State, 943 So.
2d 296, 297-98 (Fla. 1st DCA 2006) (holding that where the appellant introduced
exculpatory statements that he made to police officer, his credibility could be
attacked just as if he had testified as a witness).
Huggins and held that “[t]he State can use [an appellant’s] prior
convictions to impeach exculpatory hearsay statements of [an appellant] who does
not testify but gets the statements into evidence through another witness.”
However, in Freeman the trial court deferred ruling on the request by the
State to introduce the convictions until the appellant decided whether to
testify. Id. When the appellant did not testify, the trial court informed
the jury that the parties had stipulated to the following:
The [appellant] has been convicted of three prior felonies. Now,
ladies and gentlemen, that evidence of prior convictions should be considered
only for the purpose of assessing the [appellant]’s credibility of statements he
allegedly made that were related by a witness and are not to be considered as
proof of guilt for the charged offense.
in using this procedure. Id. at 126; see also Werley v.
State, 814 So. 2d 1159, 1162-63 (Fla. 1st DCA 2002) (holding that prior
convictions were properly admitted for impeachment purposes where the “trial
court instructed the jury that the prior convictions should be considered only
for the purpose of assessing the defendant’s credibility of statements he made
that were related by witnesses, and are not to be considered as proof of guilt
for the charged offense”).
that “[a] non-testifying defendant who brings out his or her own exculpatory
statements through another witness, ‘runs the risk of having those statements
impeached by felony convictions.’ ” Gonzalez v. State, 948 So. 2d 877,
878 (Fla. 4th DCA 2007) (quoting Kelly v. State, 857 So. 2d 949, 950
(Fla. 4th DCA 2003)). In Gonzalez, the Fourth District found no abuse of
discretion where the trial court instructed the jury as to the appellant’s prior
felony convictions and further instructed the jury that the information “is to
be utilized only by you in consideration of determining the credibility of the
statements that are attributable to Mr. Gonzalez and Mr. Gonzalez only.
Understand that it has nothing to do with any other factor in this case.”
Id. at 878.
court allowed the State to introduce certified copies of Mr. Mathis’s
convictions instead of merely informing the jury about the number of his
previous convictions. Further, the trial court did so without waiting to find
out if Mr. Mathis would testify, and it gave no instruction to the jury that it
was to consider the convictions in determining Mr. Mathis’s credibility, not his
guilt. We note that if Mr. Mathis had testified and acknowledged the correct
number of times he had been previously convicted of a felony, the State would
not have been permitted to introduce the convictions or inform the jury about
the nature of the crimes. See Fotopoulos, 608 So. 2d at 791.
at 756, the trial court was required to determine whether the probative value of
the evidence was substantially outweighed by the danger of the evidence’s unfair
prejudice. § 90.403 (“Relevant evidence is inadmissible if its probative value
is substantially outweighed by the danger of unfair prejudice . . . .”). In
Huggins, 889 So. 2d at 756-57, the supreme court concluded that the trial
court did not abuse its discretion in performing this balancing test where it
tried to limit the danger of unfair prejudice by giving the jury a limiting
instruction regarding the use of the evidence and by not informing the jury of
the nature of crimes.
did not outweigh the danger of unfair prejudice to Mr. Mathis, where the jury
was informed of the nature of the crimes and the trial court did not give the
jury a limiting instruction pertaining to the convictions. During Mr. Mathis’s
trial, only one witness testified that the cocaine and drug paraphernalia found
in the house belonged to Mr. Mathis, and she admitted to having four previous
felony convictions. We hold that, although it would have been proper for the
trial court to inform the jury about the number of Mr. Mathis’s previous
convictions, it was an abuse of discretion to permit the introduction of the
convictions into evidence.
discretion in Moncus v. State, 69 So. 3d 341, 342 (Fla. 4th DCA 2011),
holding that the State had the right to attack the appellant’s credibility after
his attorney elicited exculpatory hearsay from the arresting officer, even
though the defendant did not testify. Similar to the present case, the State
introduced the certified copies of the appellant’s seven prior judgments into
evidence. Id. at 342, 344. However, the issue raised on appeal in
Moncus involved the validity of the prior convictions. Id. at 343;
see also Fisher v. State, 924 So. 2d 914, 916 (Fla. 5th DCA 2006)
(holding that the State was properly allowed to enter into evidence the
appellant’s convictions where the trial court gave a limiting instruction to the
jury). But cf. Ray v. State, 933 So. 2d 716, 720 (Fla. 4th DCA
2006) (holding that trial court properly informed the jury about the appellant’s
prior convictions without identifying the crimes because exculpatory statements
of the appellant had been admitted through testimony of the State’s witnesses;
however, when the appellant later testified and admitted to having the previous
convictions, it was an abuse of discretion to allow the State to bring out the
fact that one of the prior felony convictions was a burglary).
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