Johnson v. State

• Decision Date: 22 February 1979
• Docket Number: No. 53297,53297
• Citation: 380 So.2d 1024
• Parties: Allen Michael JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1024

380 So.2d 1024

Allen Michael JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 53297.

Supreme Court of Florida.

Feb. 22, 1979.

Robert E. Jagger, Public Defender, and Robert Dillinger, Asst. Public Defender, St. Petersburg, for appellant.

Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

ALDERMAN, Justice.

This is a direct appeal from a circuit court's judgment adjudicating the defendant Allen Michael Johnson guilty of grand larceny of a motor vehicle in violation of section 812.021, Florida Statutes (1975), and upholding the constitutionality of section 90.08, Florida Statutes (1975). In addition to his constitutional challenge, Johnson contends that the trial court erred in denying his requested jury instruction on petit larceny as a lesser included offense of grand larceny of a motor vehicle. We reject both contentions and affirm the judgment of the trial court.

Section 90.08, Florida Statutes (1975), provides:

Witnesses; conviction of other crimes as disqualification. No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime, but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.

The constitutional challenge to section 90.08 was made in the following context. Prior to trial, Johnson filed a motion in limine seeking to limit the prosecution in its questioning in regard to his prior criminal record and convictions in the event he elected to testify on his own behalf. He alleged that to allow impeachment of his credibility by evidence of his prior crimes would violate his right to due process and that, therefore, section 90.08 is unconstitutional. The trial judge denied his motion and held the statute constitutional. At trial, Johnson testified on his own behalf, and on cross-examination the state attorney asked him how many times he had been convicted of a crime. Johnson responded that he recalled two convictions. On redirect examination, defense counsel then made the following inquiry:

Q. Now, these two convictions that Mr. Crow asked about, those misdemeanors or felonies?

A. Well, I think they misdemeanors.

Q. And was one a DWI?

A. Yes, I think so.

Q. And obstructing without violence?

A. I think so.

Johnson argues that this statute constitutes a violation of his right to due process of law because it infringes upon his right to testify in his own behalf. In the past, this Court has carefully construed section 90.08 in such a way as to protect the due process rights of a defendant. For example, in McArthur v. Cook, 99 So.2d 565 (Fla.1957), which held that section 90.08 is equally applicable in civil and criminal cases, we were confronted with the question of whether the trial judge committed error in refusing to permit the cross-examination of a witness with reference to his prior conviction of crimes. We acknowledged that the application of the act presented problems which, for the guidance of the bar and the trial courts, we undertook to eliminate. As to the proper procedural approach to be taken during trial to impeach the credibility of a witness by prior convictions, we explained:

(T)he proper procedural approach is simply to ask the witness the straight-forward question as to whether he had ever been convicted of a crime. The inquiry must end at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction. If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted. If the witness so desires he may of his own volition state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications; for example, the fact that he had in the meantime been fully pardoned or that the crime was a minor one and occurred many years before. The restrictions on the use of this type of interrogation to reflect adversely on the credibility of a witness have been well illustrated by other cases. It would be repetitious to elaborate on this phase of the matter here. See Mead v. State, supra; Collins v. State, 155 Fla. 141, 19 So.2d 718; Wilson v. State, 134 Fla. 199, 183 So. 748; Robinson v. State, 80 Fla. 736, 87 So. 61. See also 58 Am.Jur., Witnesses, Sec. 734, et seq.

99 So.2d at 567.

A criminal defendant is privileged to testify in his own behalf or to refuse to testify. Once he becomes a witness, however, he may be examined the same as other witnesses on matters which illuminate the...