Fulton v. State

• Decision Date: 08 July 1976
• Docket Number: No. 48090,48090
• Citation: 335 So.2d 280
• Parties: Fred FULTON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 280

335 So.2d 280

Fred FULTON, Petitioner, v. STATE of Florida, Respondent.

No. 48090.

Supreme Court of Florida.

July 8, 1976.

Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for respondent.

HATCHETT, Justice.

Petitioner has been convicted of second degree murder and sentenced to life imprisonment. The case is here on petition for writ of certiorari to the District Court of Appeal, Fourth District. The decision under review, affirming the conviction, conflicts with this Court's decision in Jordan v. State, 107 Fla. 333, 144 So. 669 (1932). Our jurisdiction is predicated upon Article V, § 3(b)(3) of the Florida Constitution (1975).

The evidence at trial indicated that petitioner and Louise Fuller lived together some twenty years before separating in 1971. After the separation, petitioner continued to see Ms. Fuller and their eight children. Over petitioner's objection, one M. C. Banks became a regular visitor at the Fuller residence. On January 20, 1974, M. C. Banks was sitting in his car in front of the Fuller house, conversing with Ms. Fuller through an open window, when petitioner drove up. Accounts of ensuing events are conflicting. According to Ms. Fuller, petitioner got out of his car with a gun in one hand and a beer in the other approached Banks, who was also armed, and said, 'You son-of-a-bitch, didn't I tell you not to be caught hanging around here?' Ms. Fuller testified that she grabbed the petitioner and told him to let Banks go, but a gun battle between the two men broke out. Banks later died of gunshot wounds.

Shortly after the shooting, petitioner turned himself in. He claimed that he was unarmed when he first approached Banks' car, that he saw the gun between Banks' legs, and heard Louise Fuller tell him to run. According to petitioner, Banks picked up his gun at this point and fired. Petitioner testified that only then did he crawl back to his own car and get his gun from the glove compartment.

At trial the petitioner relied on self-defense. Ulysses Bartee, Jr., a defense witness, testified that the victim Banks had a violent reputation in the community. On cross-examination, the prosecutor brought out, over objection, that Bartee was charged with second degree murder (an entirely unrelated offense). ¹ On appeal, the District Court of Appeal, Fourth District, affirmed, Judge Downey dissenting. Fulton v. State, 318 So.2d 511 (Fla.App.4th 1975). The majority concluded that allowing the State to cross-examine a defense witness concerning pending criminal charges was, at most, harmless error. We granted petition for writ of certiorari, and dispensed with oral argument.

The great weight of authority is to the effect that evidence of pending charges against a witness is inadmissible for impeachment purposes. See, e.g., United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975); Truman v. Wainwright, 514 F.2d 150, 152 (5th Cir. 1975); United States v. Madden, 482 F.2d 850 (8th Cir.), Cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973); Hudson v. United States, 387 F.2d 331, 332 (5th Cir. 1967). ('A witness may not be impeached by showing wrongful conduct or the commission of an offense for which there has been no conviction'); State v. Coxe, 16 N.C.App. 301, 191 S.E.2d 923, 926, Cert. denied, 282 N.C. 427, 192 S.E.2d 840 (1972); People v. Smith, 74 Ill.App.2d 458, 221 N.E.2d 68, 71 (1966). Cf. Gaines v. State, 481 S.W.2d 835 (Tex.Cr.App.1972); Wharton's Criminal Evidence § 444 (13th ed. 1972); Jones, The Law of Evidence, § 25:14 (1972); 3A Wigmore, Evidence § 980a (6th ed. 1972). Contra, People v. Brown, 34 Mich.App. 45, 190 N.W.2d 701, 703 (1971) ('witness may be questioned about prior arrests and convictions for the purpose of testing credibility'). Cf. State v. Torres, 97 Ariz. 364, 400 P.2d 843 (1965). The majority view reflects various considerations. The admission of such evidence might unduly prejudice a jury against the witness; an unproven charge does not logically tend to affect a witness' credibility; and a person is presumed innocent until guilt is legally established. See Annot., 20 A.L.R.2d 1421 (1951). In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Court recognized the basic irrelevance of such evidence:

Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness. Id. at 482, 69 S.Ct. at 222.

This Court in Jordan v. State, 107 Fla. 333, 144 So. 669 (1932) stated the Florida view, as follows:

It is only permitted to interrogate witnesses as to previous Convictions, not mere former arrests or accusations, for crime.

107 Fla. at 335, 144 So. at 670 (emphasis added).

Under the principle Inclusio unius exclusio alterius, Section 90.08, Florida Statutes, ² buttresses the conclusion reached in Jordan v. State, supra, because the statute speaks exclusively in terms of 'convictions.'

The State contends that the issue should be left to the 'sound discretion' of the trial court, citing Wallace v. State, 41 Fla. 547, 26 So. 713 (1899) and Dennis v. State, 214 So.2d 661 (Fla.App.3rd 1968). See also State v. Ralls, 213 Kan. 249, 515 P.2d 1205; State v. Hozer, 19 N.J. 301, 116 A.2d 193, 199 (1955). In Wallace this Court stated:

(C)ross-examination of a witness as to indictments or charges before conviction against him, of criminal offenses, is a matter of a discretion in the trial court, not subject to review on writ of error or appeal, unless the discretion is abused. 41 Fla. at 556, 26 So. at 719.

Only a very narrow discretion was contemplated by the Wallace Court, however. The Court went on to say:

Inquiry into collateral matters should not be permitted, unless there is reason to believe it may tend to promote the ends of justice, And it seems essential to the true estimation of the witness' testimony by the jury.'

Id. at 576, 26 So. at 722. (emphasis supplied).

The Wallace case indicates that the ban against interrogation of a witness as to pending charges is the general rule, although not an absolute one; it does not confer authority on the trial court to disregard the ban at will.

The prohibition against evidence as to charges pending against a witness does not apply, for example, where the pending charges arise out of the same episode giving rise to the charges on which the defendant is being tried. See, e.g., Herzing v. State, 213 So.2d 900 (Fla.App.4th 1968). When a prosecution witness is under criminal charges at the time he testifies, the defense is entitled to bring this fact out.

(I)t is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination . . . Morrell v. State, 297 So.2d 579, 580 (Fla.App.2nd 1974).

See also Lee v. State, 318 So.2d 431 (Fla.App.4th 1975). Similarly the Court in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), stated:

Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross examination that (the witness') testimony was affected by fear or favor growing out of his detention. Id. at 693, 51 S.Ct. at 220.

In Moore v. State, 308 So.2d 563 (Fla.App.2nd 1975), the court permitted the State to question defense witnesses regarding their presence in jail in order to identify the place and time where the witnesses learned of the facts of which they were testifying. See Alford, supra.

In the present case, the State apparently offered evidence of the charges pending against the witness in an effort to show general bias. A defense witness' supposed bias, attributable to charges concerning a totally distinct offense, is not a proper subject for impeachment. Cf. Williams v. State, 110 So.2d 654 (Fla.1959); Watson v. Campbell, 55 So.2d 540, 541 (Fla.1951) ('evidence of another and distinct crime committed by defendant, in no way connected by circumstances with the one for which he is being tried, is inadmissible'); Whitehead v. State, 279 So.2d 99, 100 (Fla.App.2nd 1973). The probative value of such inquiry is outweighed by the likelihood of prejudice to the accused. The trial court erred in overruling defense objections to testimony concerning a defense witness' pending criminal charges, since there was no substantial connection between the pending charges and the charges for which the defendant was on trial.

It is also established that 'evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness.' Watson v. Campbell, 55 So.2d at 541. See also Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930); Squires v. State, 42 Fla. 251, 27 So. 864 (1900); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898); Williams v. State, 324 So.2d 672 (Fla.App.4th 1975). When there has been a prior conviction, only the fact of the conviction can be brought out, unless the witness denies the conviction. See McArthur v. Cook, 99 So.2d 565 (Fla.1957); Mead v. State, 86 So.2d 773 (Fla.1956). If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions. ³ Even if a witness denies a prior conviction, the specific offense is identified only incidentally when the record of the conviction is entered into evidence. Irvin v. State, 324 So.2d 684, 686 n. 1 (Fla.App.4th 1976); Lockwood v. State, 107 So.2d 770, 773 (Fla.App.2nd 1958)('The proof of a prior conviction under Section 90.08, Supra, is limited to the record of such...