King v. State, 86-2653

• Decision Date: 03 May 1988
• Docket Number: No. 86-2653,86-2653
• Citation: 525 So.2d 924,13 Fla. L. Weekly 1068
• Parties: 13 Fla. L. Weekly 1068 Loylin KING, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 924

525 So.2d 924

13 Fla. L. Weekly 1068

Loylin KING, Appellant, v. The STATE of Florida, Appellee.

No. 86-2653.

District Court of Appeal of Florida,

Third District.

May 3, 1988.

Rehearing Denied June 15, 1988.

Bennett H. Brummer, Public Defender, and Barbara Green, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Debora J. Turner, Asst. Atty. Gen., for appellee.

Before BARKDULL, NESBITT and JORGENSON, JJ.

JORGENSON, Judge.

Loylin King appeals his conviction and sentence for the offense of burglary of an occupied dwelling. We affirm in part and reverse in part.

During his jury trial, King argued that he was merely the middleman in a drug deal between his companions and John Hadley who, according to King, was a known drug dealer. King testified that he was unaware of his companions' plan to burglarize Hadley's home and rob its occupants. Hadley, the state's key witness, denied dealing drugs or knowing King. King's defense theory was that Hadley was lying to conceal his own drug dealing. King attempted to impeach Hadley on cross-examination by focusing on Hadley's pretrial deposition. During his deposition, Hadley had asserted his fifth amendment privilege against self-incrimination when questioned about drug-related activities. The trial court restricted King from further inquiries about Hadley's invoking the privilege or his status as a drug dealer.

King asserts on appeal, inter alia, that the restriction on his ability to attack Hadley's credibility violated his sixth amendment right of confrontation. We disagree. The trial court was correct in curtailing King's line of questioning, thereby "preventing the cross-examination from either going beyond the scope of direct or becoming, under the guise of impeachment, a general attack on the character of the witness." Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

The facts of Steinhorst are instructive. Steinhorst was part of a drug-smuggling conspiracy during the course of which four people were murdered. At Steinhorst's trial, one of the state's witnesses testified that Steinhorst had related to him the circumstances of the killings. On cross-examination defense counsel asked the witness whether he was an instrumental part of the importation scheme. Counsel stated that his line of inquiry was intended to impeach the credibility of the witness. The trial court limited cross-examination to the witness's knowledge of the murders and refused to permit a general inquiry into the witness's participation in the smuggling plan. On appeal, Steinhorst argued that he was trying to develop a defense theory and that the trial court improperly limited his cross-examination. The supreme court determined that Steinhorst could properly question the witness concerning the conversation alluded to on direct examination and the factual background of the conversation. However, the court concluded that such questioning was subject to limits. The court observed that "to question [the witness] generally about his role in the marijuana smuggling operation would have been to engage in a general attack on his character." Id. at 338.

Similarly, King's theory "was clearly a defensive matter well beyond the scope of the direct examination." Id. at 339. In order to impeach Hadley, King should have laid a proper foundation by calling his own witnesses and not by pursuing a line of questioning designed to insinuate impeaching facts. See Marsh v. State, 202 So.2d 222 (Fla. 3d DCA 1967) (prosecutor should not have been permitted to lay a foundation for...