Bobb v. State, 93-1290

• Decision Date: 09 November 1994
• Docket Number: No. 93-1290,93-1290
• Citation: 647 So.2d 881
• Parties: 19 Fla. L. Weekly D2360 Terrance BOBB, a/k/a Anthony Borne, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 881

647 So.2d 881

19 Fla. L. Weekly D2360

Terrance BOBB, a/k/a Anthony Borne, Appellant, v. STATE of Florida, Appellee.

No. 93-1290.

District Court of Appeal of Florida Fourth District.

Nov. 9, 1994.

Rehearing Denied Jan. 20, 1995.

Richard L. Jorandby, Public Defender, and Eric M. Cumfer, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.

PARIENTE, Judge.

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 subsection 90.610(1), Florida Statutes (1993); the first, covering all felony convictions, and the second, covering misdemeanors involving dishonesty or false statement. It reasoned that allowing a witness who has been convicted of a felony to be further questioned as to whether that felony involved a crime of dishonesty or false statement would result in impermissible inquiry into the nature of the felony.

Subsection 90.610(1) of the Florida Evidence Code (1993) reads:

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 section 90.610 of the evidence code, the theory supporting the admissibility of a wide variety of convictions is that "a person with a criminal record has demonstrated a willingness to violate the law, which bears upon the person's willingness to disregard the oath to tell the truth." Erhardt, Charles, Florida Evidence, Sec. 610.1, at 419 (1993 ed.). In Martin v. State, 86 Fla. 616, 620, 98 So. 827, 829 (Fla.1924), the Supreme Court explained that it is not a question of what crime a witness may have committed, but whether he has been convicted of any crime, which should affect his credibility. As stated by then Judge Alderman writing for our court, "[t]he mere fact that a defendant [or witness] has been convicted of a crime is sufficient to cast doubt on his believability." Goodman v. State, 336 So.2d 1264, 1266 (Fla. 4th DCA 1976), cert. denied, 342 So.2d 1103 (Fla.1977). Furthermore, to allow a more extensive inquiry of a witness or a defendant on a collateral matter of impeachment would run the risk of making the prior convictions a feature of the trial.

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; Sec. 90.08, Fla.Stat. (1975).

In 1977, the Florida Evidence Code was enacted and section 90.610 replaced that part of section 90.08 relating to evidence of prior convictions affecting the credibility of a witness. ¹ As initially enacted, subsection 90.610(1) restricted impeachment only to crimes involving dishonesty or false statement. The senate staff analysis explained the limitation on impeachment to crimes involving dishonesty or false statement as a logical restriction "since the evidence is being used to attack the witness'[s] truth and veracity." Senate Judiciary Staff Analysis, SB 754, at 3 (1975).

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 subsection 90.610(1) to include all crimes punishable by death or imprisonment in excess of one year. Ch. 78-361, Laws of Florida (1978). The legislatively enacted evidence code, as amended, was subsequently adopted by the supreme court as a court rule because, as reasoned by the supreme court, the evidence code involved a matter of court procedure solely within the province of the supreme court to enact pursuant to article V, section 2(a). Page, 449 So.2d at 815; see In re Florida Evidence Code, 372 So.2d 1369 (Fla.1979). Therefore, analysis of the subsection is not governed by legislative intent and we need not apply principles of statutory interpretation. Page, 449 So.2d at 815. Rather, we read the subsection in conjunction with the limited purpose for which convictions have been historically admissible.

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, subsection 90.610(1), as amended, expanded the class of crimes which could be utilized for impeachment purposes close to the pre-1977 practice of allowing impeachment for all crimes. The only crimes which cannot now be used for impeachment purposes are those misdemeanors not involving dishonesty or false statement. As explained by Justice Adkins in Page:

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....

449 So.2d at 817.

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 subsection 90.610(1) by refusing to approve the following question even though it tracked the statutory language: "Have you ever been convicted of a crime punishable by death or in excess of a year?" The court expressed its concern that this question could "easily create an inference in the minds of jurors that a defendant had been previously convicted of a capital crime when in fact, he may have been convicted of only a minor felony." Davis, 397 So.2d at 1007. The defendant or witness would then be put into the position of having to explain the nature of the crime in order to dispel the inference that the conviction was for homicide. The court suggested asking the question, "Have you ever been convicted of a felony?" It reasoned that this simple inquiry encompassed the statutory elements while eliminating potential prejudice.

Likewise, authorizing a prosecutor or defense lawyer to ask the more detailed question concerning whether the felony convictions involved dishonesty or false statement could...