Cummings v. State

• Decision Date: 14 April 1982
• Docket Number: No. 81-1139,81-1139
• Citation: 412 So.2d 436
• Parties: Gregory CUMMINGS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 436

412 So.2d 436

Gregory CUMMINGS, Appellant, v. STATE of Florida, Appellee.

No. 81-1139.

District Court of Appeal of Florida, Fourth District.

April 14, 1982.

Edna L. Caruso, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Gregory Cummings appeals his conviction and sentence for aggravated battery with a firearm, shooting at or into a public or private building, and aggravated assault with a firearm.

While attempting to purchase a five dollar bag of marijuana, appellant was beaten and several items of personal property were taken from him. The parties did not dispute the fact that a shooting occurred following this incident. The question was who fired the gun. Appellant denied that he did the shooting and testified that a passenger in his van fired the gun. During direct examination appellant's counsel asked if he had ever been convicted of a felony and he answered, "Yes, once." On cross-examination, the prosecutor asked over objection, "How many times have you been convicted of a crime?" Appellant answered five to seven times. During argument the prosecutor emphasized the convictions, and when appellant challenged the credibility of a witness who identified him as holding the gun the prosecutor argued that "The State Attorney's office does not deal with people that commit violent crimes. There is no negotiations (sic). There is no leniency." The prosecutor also argued that she was sure that an auto body man, called as a witness by the appellant, had been paid nicely for the body work on appellant's van. Neither party had introduced evidence regarding the amount paid for the body work.

Appellant raises several points on appeal, one of which requires the remand of this case for a new trial, and another merits discussion. First, appellant contends that the trial court erred in allowing the prosecutor to cross-examine as to his conviction of "crimes," and secondly, appellant contends that in closing argument the prosecutor made improper comments unsupported by the evidence.

Appellant's first point would have no merit if the trial of this case had occurred prior to July 1, 1979. The law was well established that when a defendant in a criminal case took the stand to testify, the prosecution could attempt to impeach his or her credibility by asking the witness about previous convictions of any crime, and the number of criminal convictions. § 90.08, Fla.Stat. (Supp.1978); Goodman v. State, 336 So.2d 1264 (Fla. 4th DCA 1976); Mead v. State, 86 So.2d 773 (Fla.1956). However, Section 90.610(1), Florida Statutes, effective July 1, 1979, governs this case. It provides

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 .... (Emphasis added).

This statute clearly restricts the crimes which may be considered when attempting to impeach a witness on past convictions.

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.

In Davis v. State, 397 So.2d 1005 (Fla. 1st DCA 1981), the Court discussed the importance of the form of the question to be asked when attacking the witness's credibility based on past convictions. In Davis, supra, the prosecutor asked the defendant, "Have you ever been convicted of a crime punishable by death or imprisonment in excess of one year under the law in which you were convicted?" The Court found prejudice despite the fact that the prosecutor propounded the question in the exact statutory language. To elicit this information in one question could create an inference, especially in a murder prosecution, that the defendant had been once convicted of a capital crime when he might in fact have been convicted of a minor felony. However, to ask two questions could also create prejudice, for if the defendant testified that he had previously been convicted of a crime punishable by death, then he has virtually been forced to reveal the nature of the prior conviction. Therefore the Court found it preferable to ask if the defendant has been convicted of a felony. This simple inquiry encompasses the statutory elements and eliminates prejudice.

Appellant has the opposite problem of the witnesses in Davis v. State, supra. The prosecutor made no effort to elicit the nature of his crimes, but the questioning had the same prejudicial result because of the introduction of inadmissible evidence. Evidence of prior convictions for misdemeanors not involving dishonesty or false statements is irrelevant. Cross-examination regarding irrelevant criminal incidents is reversible error. Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981). The prosecutor knew that the statute did not encompass all misdemeanor convictions. She argued to the judge that the Evidence Code allowed her to ask about felonies and also about crimes involving "theft or untruthfulness," although the statutory language is dishonesty...