Knight v. State, W--186

• Decision Date: 17 July 1975
• Docket Number: No. W--186,W--186
• Citation: 316 So.2d 576
• Parties: Jacob Leonard KNIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 576

316 So.2d 576

Jacob Leonard KNIGHT, Appellant, v. STATE of Florida, Appellee.

No. W--186.

District Court of Appeal of Florida, First District.

July 17, 1975.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.

BOYER, Chief Judge.

Appellant was convicted by a jury of the second degree murder of his father-in-law and was sentenced to 15 years imprisonment. He now challenges by direct appeal the judgment and sentence.

On the night of August 5, 1973, appellant, who had been separated from his wife, visited her and their children at the wife's trailer. The victim, John Henry Madison, came up to the trailer and told the appellant to come out. The wife observed her father and the appellant having a conversation, at the conclusion of which appellant shot Mr. Madison. The victim received three gunshot wounds which caused his demise. Appellant states that the victim approached him with a large Barlow knife in his hand, and, indeed, the victim was discovered lying on his back with a knife in his open hand. However, although both the deceased's son and daughter stated that they saw something in his hand prior to his death, both stated that they did not see him with a knife in his hand either before or after the shooting. They also stated that he fell face down after being shot. The son further stated that after initially seeing his father fall face down and without a knife in his hand, he returned to the scene after a period of time and found that his father was lying on his back and had a knife in his open hand.

Appellant now objects to certain alleged errors committed during the conduct of his trial, the first of which relates to the method by which the prosecutor attempted to impeach appellant's testimony. Specifically, appellant asserts the trial court erred in permitting the prosecutor to mention the nature of a crime for which appellant had been arrested but not convicted. The proper procedure for the introduction of a prior conviction is set forth in F.S. 90.08 which provides:

'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 advance to affect his credibility.'

If a witness denies a prior conviction, 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. (McArthur v. Cook, Sup.Ct.Fla.1957, 99 So.2d 565; see also Braswell v. State, Fla.App.1st 1975, 306 So.2d 609)

At appellant's trial, however, the required procedure was not followed. Instead, the prosecutor initially asked the appellant if he had every been convicted of a crime, to which the defendant responded in the negative. The jury was then excused and a sidebar conference was held, after which the jury returned and the prosecutor asked the appellant if he had ever been convicted of assault with a deadly weapon, found guilty, and placed on five years probation. Again, appellant answered in the negative to compound the error, the prosecutor asked the question, in varying forms, six more times, each time receiving a negative rely.

The State does not deny that error was committed, but argues that it was harmless. The State urges that, if anything, the series of questions and answers now objected to actually aided the defense because the net result was to convey the impression to the jury that the defendant had never been convicted of a crime. Yet, this argument ignores the importance of the prosecutor in the eyes of the jury. What is the average juror to think when the representative of the State is...