Lawhorne v. State

• Decision Date: 30 December 1986
• Docket Number: No. 68365,68365
• Citation: 500 So.2d 519,12 Fla. L. Weekly 24
• Parties: 12 Fla. L. Weekly 24 Ruben LAWHORNE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 519

500 So.2d 519

12 Fla. L. Weekly 24

Ruben LAWHORNE, Petitioner, v. STATE of Florida, Respondent.

No. 68365.

Supreme Court of Florida.

Dec. 30, 1986.

Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, and Howard K. Blumberg, Asst. Public Defender, Miami, for petitioner.

Jim Smith, Atty. Gen., and Randi Klayman Lazarus and Debora J. Turner, Asst. Attys. Gen., Miami, for respondent.

BOYD, Justice.

This cause is before the Court on petition for review of the decision in Lawhorne v. State, 481 So.2d 19 (Fla. 3d DCA 1985). Review is sought on the ground that the decision is in conflict with decisions of this Court or those of other district courts of appeal. We accepted jurisdiction on this basis. Art. V, § 3(b)(3), Fla. Const.

Petitioner was convicted in a jury trial of theft, trespassing, and resisting an officer without violence. At the trial, petitioner testified in his own behalf. On direct examination, defense counsel asked petitioner whether he had ever been convicted of a crime. Petitioner answered in the affirmative and his counsel then asked him how many times he had been convicted. Petitioner testified that he had been convicted six times. Defense counsel then asked petitioner whether he had gone to trial in the cases in which he had been convicted. At this point the prosecutor objected and the trial judge sustained the objection. Defense counsel argued that the question pertained to his client's credibility and was permissible. The trial judge directed that there would be no questioning by either side about any of the details or the nature of the previous convictions. On appeal the district court affirmed. The district court held that "the questions concerning the specifics of the defendant's six prior convictions were both untimely and improper." 481 So.2d at 20.

In reaching its conclusion that the questions were untimely, the district court cited to the decision in Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984), review denied, 462 So.2d 1108 (Fla.1985), where the court said that such "anticipatory rehabilitation" "scramble[s] the orderly procedure laid out by the Florida Rules of Evidence [and] robs the defense counsel of an important strategic tool used in cross-examination, that of impeachment of a witness through the use of prior inconsistent statements." Id. at 1092. The court below also suggested that the testimony sought to be elicited might have been proper if the questioning "had come after the defendant had been impeached by the state with his prior convictions and defense counsel was seeking to rehabilitate him." Lawhorne v. State, 481 So.2d at 20. In this connection the court made reference to authorities holding that on redirect examination the party presenting a witness's testimony "may re-examine a witness about any matter brought out on cross-examination," Noeling v. State, 40 So.2d 120, 121 (Fla.1949), and that a witness whose credibility is impeached by questioning as to criminal convictions may "state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications." McArthur v. Cook, 99 So.2d 565, 567 (Fla.1957). Based on these and other authorities, the district court observed:

Thus, when a criminal defendant is impeached by the disclosure on cross-examination of prior convictions, § 90.610, Fla.Stat. (1983), the defense counsel on redirect examination may attempt to rehabilitate the defendant by eliciting from the defendant the nature of the prior convictions.

Lawhorne v. State, 481 So.2d at 20.

In Bell v. State, 491 So.2d 537, 538 (Fla.1986), this Court approved the use of "anticipatory rehabilitation" to "take the wind out of the sails" of an attack on credibility or to "soften the blow" of anticipated inquiries or revelations expected to be damaging to the credibility of the witness. Our opinion there implicitly rejected the reasoning expressed in Ryan v. State when we said:

The credibility of witnesses is always in issue. C. Ehrhardt, Florida Evidence § 401.1 (2d ed. 1984). We see no violation to the evidence code in allowing a party to mitigate the impact of inconsistent statements likely to be introduced, nor anything intrinsic to the jury's truth-finding function in an arbitrary requirement that opposing counsel's trial strategy may not be undercut. "Generally the rule against impeaching your own witness has not been interpreted to forbid counsel from asking his own witness on direct examination about prior inconsistent statements or prior convictions when done in an attempt to 'soften the blow' or reduce the harmful consequences." Ehrhardt, § 608.2 (citations omitted).

Bell v. State, 491 So.2d at 538. In Sloan v. State, 491 So.2d 276 (Fla.1986), we held that the state on direct examination of its witness could reveal the witness's prior inconsistent statements and question the witness regarding the inconsistencies. "The fact that the inconsistencies in the prior testimony and the testimony at trial were revealed on direct examination rather than on cross did not alter the totality of the testimony heard by the jury." Id. at 277. In State v. Price, 491 So.2d 536 (Fla.1986), we held that the presentation by the state of testimony of a witness explaining the reason for her prior inconsistent statements was improper not because elicited on direct examination but because the testimony brought out was improper and inadmissible on other grounds.

The only difference between Bell, Sloan, and Price on the one hand and the present case on the other is that in those cases the party seeking to deflate anticipated impeachment and lessen its effects by means of testimony presented on direct examination of its witness was the state while in this case the party seeking to utilize such a procedure was the defendant.

The issues before us are (1) whether the attempted questioning about whether the prior cases went to trial was proper rehabilitation and (2) whether such rehabilitation should be allowed on direct examination in anticipation of impeachment based on the prior convictions.

The second question is answered by our decisions in Bell and Sloan. Those decisions make clear that the party presenting testimony may not only bring out impeaching information on direct examination to steal the thunder of the impeachment it is anticipated the other side will elicit on cross, but may attempt to "reduce the harmful consequences" by explaining something about the nature or character of the damaging information--in other words, to rehabilitate the witness before he has been impeached. It is clear from the record in this case that the state fully intended to ask the witness about his prior convictions and had the documentation thereof in hand in case he should deny them. The state did not object to the defense bringing out the convictions but only to the question about whether the witness had been tried on the charges that led to those convictions. Consistent with Bell and Sloan we hold that a defendant testifying in his own behalf may not only testify about information comprising impeachment that the state would be permitted to elicit on cross-examination, but may also rehabilitate himself against such impeachment to the same extent as would be allowed on redirect following such impeachment by the state.

The other, or first question stated above, is more difficult. That question is whether the testimony sought to be presented, regardless of when it might be presented, was proper and permissible witness rehabilitation. The state argues that the question went beyond the scope of permissible rehabilitation and would have been improper even on redirect examination after impeachment. Petitioner argues that the trial court's ruling, that neither party would be allowed to present anything about the nature or circumstances of the prior convictions, erroneously prevented the presentation of permissible rehabilitation of the defendant's character and credibility at any time during the trial. The state argues that the attempted defense question sought to elicit irrelevant information that would not have been germane to any proper ground of rehabilitation, relying on McArthur v. Cook, 99 So.2d 565 (Fla.1957).

In McArthur v. Cook, which was a civil case, the plaintiff testified in his own behalf. The defendant questioned him about whether he had ever been convicted of a crime. The trial court sustained the plaintiff's objection to the line of questioning, ruled that the questions and answers pertained to inadmissible matter, and ordered them stricken. On appeal this Court held that, based on a statutory rule of evidence, the fact of previous conviction on the part of the witness was admissible to affect his credibility. We also commented on the witness's right to respond:

[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.

Id. at 567 (emphasis supplied). Other cases also make clear that while the impeaching party may only inquire as to the existence of convictions and their number (or, if the matter be...