Livingston v. State, 95-02197

• Decision Date: 23 October 1996
• Docket Number: No. 95-02197,95-02197
• Citation: 682 So.2d 591
• Parties: 21 Fla. L. Weekly D2307 Glenn J. LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 591

682 So.2d 591

21 Fla. L. Weekly D2307

Glenn J. LIVINGSTON, Appellant, v. STATE of Florida, Appellee.

No. 95-02197.

District Court of Appeal of Florida Second District.

Oct. 23, 1996.

James Marion Moorman, Public Defender, and Karen Kinney, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

PARKER, Judge.

Glenn J. Livingston appeals his conviction for sale and possession of cocaine and his habitual felony offender sentence. This case involved an undercover police officer purchasing crack cocaine. The jury convicted Livingston as the go-between in the sale. We conclude that all four errors raised by Livingston require reversal. However, this opinion will address only three errors because the fourth error, a discovery error, is moot.

Over objection, the trial court permitted the prosecutor to inquire into each of Livingston's prior felony convictions. The prosecutor elicited the name of each crime and asked Livingston about some of the sentences that he received for these convictions. The trial court erred because it allowed the prosecutor to cross-examine Livingston about the specific nature of his prior convictions. The prosecutor may ask the defendant if he has committed any felonies or crimes involving dishonesty or a false statement. § 90.610, Fla. Stat. (1993). If the defendant answers correctly, then the prosecutor may establish the number of convictions. Unless the answers to those two questions are untruthful, the prosecutor is not allowed to inquire as to the specifics of any of the prior convictions. Britton v. State, 604 So.2d 1288, 1290 (Fla. 2d DCA 1992). The record supports the fact that Livingston answered both questions truthfully and in a straightforward manner.

Furthermore, this error cannot be deemed harmless. The main issue in this trial was one of credibility. The officer testified that he purchased the cocaine from Livingston, and Livingston testified that he was not present at the sale nor did he sell the cocaine to the officer. Livingston had an extensive criminal history, and it cannot be said that this evidence of prior bad acts did not influence the jury's decision. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Next, the trial court permitted, over objection, the police officer to testify that he had been involved in a high-profile drug prosecution of a large-scale drug dealer, and that he had been named "Officer of the Year" for his role in that investigation. The state argues that it only elicited the information regarding the officer's award as part of demonstrating his experience and expertise in drug enforcement. If this had been the only time that the state referred to the officer's experience, it would have been harmless error. However, in closing argument, the state repeatedly called Livingston a liar, arguing that this "officer of the year" would not risk lying for someone like the defendant. The state argued, "He did such a good job, he was named 'Officer of the Year' in St. Petersburg. Twenty years down the toilet for Glenn...