Martin v. State, 80-2001
| Citation | 411 So.2d 987 |
| Decision Date | 31 March 1982 |
| Docket Number | No. 80-2001,80-2001 |
| Parties | Eileen MARTIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant, Eileen Martin, complains of improper impeachment during cross-examination. We agree and hold that the combination of prosecutorial and judicial error requires a reversal of her conviction and sentence.
Defendant was charged with sale of valium to Ronald Markowski, an undercover Boca Raton policeman. Ms. Martin testified in her own defense. During direct examination, defense counsel carefully elicited that she had been convicted of a crime on two prior occasions. Counsel stopped with that and moved on to other areas of inquiry. On cross-examination the following colloquy ensued between the prosecuting attorney and the defendant:
Q In essence, your testimony was that Officer Markowski wanted to frame you, is that right?
A Yes.
Q Why would Officer Markowski want to frame you?
A Why would he?
Q Yes.
A Well, for one thing, to my belief, they think that I was the person that was giving these people the drugs. That is why.
Q Why would they think--
A That is why they came to me, called me, followed me, stopped me all hours of the night, went to my jobs where I worked. They were constantly trying to see if they could get anything from me, and they never did.
Q Well, they never did?
A No.
Q At anytime?
A I never sold Ron-whatever his name is-anything.
Q Now, you have been convicted of two crimes, have you not?
A Yes, I have.
Q And what was one of those crimes?
Defense counsel objected and the jury was excused. The prosecutor then argued that the defendant's response, "They were constantly trying to see if they could get anything from me, and they never did," opened the door to further inquiry. The trial court did not rule on this assertion because of its view of the applicable law: "... (Tr. 96). The court elaborated: (Tr. 97). Thus, the trial court overruled a defense objection and a motion for mistrial and permitted the prosecutor to ask the defendant if she had ever sold drugs before. She responded, "yes."
This line of questioning was underscored during final argument when the prosecuting attorney stated:
" " What is the reason? " She gave a long answer, and during the course of the answer was, she said, "I never sold drugs. " And I said, "Wait a minute, you never sold drugs to anybody? " She changed and caught herself-So, I asked, "Have you ever sold to anyone? " "Not to Ron. " She changed her story. And after you came back, I asked the question of the Defendant, "Have you ever sold drugs to anyone? " She said, "Yes. " She changed her testimony. She lied right before you on the witness stand.
Unfortunately, the trial court was mistaken in its view of the law. Putting aside the "Williams Rule" which is now codified as Section 90.404(2)(a), Fla.Stat. (1981) and which is generally utilized in the state's case-in-chief, a prosecutor is not authorized to delve into a prior conviction simply because a defendant elects to take the witness stand in his own defense. This is true despite the proximity and similarity of the alleged subsequent offense to a prior conviction. The appropriate rule is found in Section 90.610, Florida Statutes (1979). It states:
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:
(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
(b) Evidence of juvenile adjudications are inadmissible under this subsection.
(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.
(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.
Cf. Davis v. State, 397 So.2d 1005 (Fla. 1st DCA 1981).
The avowed purpose for such questioning is to test the credibility of the witness. Thus, as happened in the case at bar, when a defendant admits to prior convictions and accurately states their number, the questioning should cease unless the defendant has opened the door to further inquiry. This, of course, was the prosecutor's contention here and since we are obliged to affirm the trial court if we can do so by any theory revealed by the record on appeal, Savage v. State, 156 So.2d 566 (Fla. 1st DCA), cert. denied, 158 So.2d 518 (Fla.1963), we turn to the prosecutor's suggestion.
Essentially the prosecutor contended that the defendant opened the door to further inquiry when she stated, "They were constantly trying to see if they could get anything from me, and they never did." The prosecutor argued that the defendant's use of the plural form of the personal pronoun "they" inferred activity by the police in general. Furthermore, he claimed that the adverb "never" suggested an all-inclusive time frame. Accordingly, he sought the court's permission to ask the defendant about a 1977 conviction for sale of PCP to a Boca Raton policeman. In fact, however, the prosecutor posed a broader question; he asked the defendant whether she had ever sold drugs before.
If the prosecutor's interpretation were correct, he would have been entitled to delve further. See, e.g., Davis v. State, 216 So.2d 87 (Fla. 2d DCA 1968); Dodson v. State, 356 So.2d 878 (Fla. 3d DCA), cert. denied, 360 So.2d 1248 (Fla.1978). However, we cannot agree with his analysis. To start with, a defendant's statement cannot be evaluated in the abstract; it must be...
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