Kelly v. State

• Decision Date: 15 April 1975
• Docket Number: No. 74--722,74--722
• Citation: 311 So.2d 124
• Parties: Jack Herman KELLY, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 124

311 So.2d 124

Jack Herman KELLY, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 74--722.

District Court of Appeal of Florida, Third District.

April 15, 1975.

Philip Carlton, Jr., and Arthur Joel Berger, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

PEARSON, Judge.

Appellant was found guilty by a jury of assault with intent to commit murder. The court entered an adjudication of guilt upon the verdict and sentenced appellant to fifteen years imprisonment. On appeal, two points are presented alleging reversible error.

The first point concerns the disclosure by an eyewitness to the shooting that he had, as a minor, been found guilty of a juvenile offense. Such disclosure was made only after the persistent repeating by the State of the question, 'Have you ever been convicted of a crime?' At first, the witness answered, 'No sir' to which the State reasserted, 'Never?' Appellant objected and a side bar conference followed in which the State told the court that it was prepared to show by the witness's own statement that the witness had been convicted of a crime. The court sustained the appellant's objection. The State, upon resuming the questioning of the witness, restated the question, 'So that I understand what you are saying,' referring to the witness's statement that he had not previously been convicted of a crime. The court overruled appellant's objection to the question and the witness then asked for the question 'one more time.' Upon the State's repeating the question, the witness responded that he had been convicted, 'as a minor.' Appellant moved to strike and for a mistrial, which motions the court respectively overruled and denied.

Both parties cite the case of Stewart v. State, Fla.App.1969, 221 So.2d 155. In that case, the State asked a witness, '. . . you were in the Dade County Juvenile Home not long ago weren't you?' The trial judge struck the question and admonished the jury to disregard it, but refused to grant a mistrial. That court held that the harmful effect created was cured by the court's instruction. From a reading of the transcript here, we think that the State must be presumed to have known of the witness's juvenile record. The persistent repetition of the question by the State, of itself, emphasized the State's position that the witness was unworthy of belief because of his prior trouble as a minor. As to the relevancy of a conviction that is remote, see Braswell v. State, Fla.App.1975, 306 So.2d 609. The court should have struck the question and answer from the record and should have instructed the jury to disregard such testimony.

The second point on appeal concerns the State's failure to notify the defendant of a deposition of this same witness which was taken by the State some four days prior to trial. The error urged is that the State failed to notify the appellant that the witness had been subpoenaed and was to be deposed and further that the appellant had not been provided with a copy of the deposition. ¹ The witness deposed was one of two eyewitnesses to the shooting. Anything he said upon being deposed was of vital importance to the defense. It appears that at about 11:00 a.m. on the third day of the trial the State had in its possession copies of the deposition in question. Defendant's counsel was not told that copies of such deposition were available. The direct examination of the witness by the defense was completed before appellant learned not only of the State's possession of copies of the deposition, but also...