Mosley v. State, 98-1502.

• Decision Date: 25 August 1999
• Docket Number: No. 98-1502.,98-1502.
• Parties: John MOSLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

739 So.2d 672

John MOSLEY, Appellant, v. STATE of Florida, Appellee.

No. 98-1502.

District Court of Appeal of Florida, Fourth District.

August 25, 1999.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Rochelle L. Kirdy, Assistant Attorney General, West Palm Beach, for appellee.

SCHACK, LARRY, Associate Judge.

The appellant (the defendant below) appeals his convictions for resisting an officer without violence, possession of cocaine, and possession of drug paraphernalia. We affirm.

On the evening of October 25, 1996, Lt. Wagner and Officer Bradford of the Hollywood Police Department drove up to a group of people standing on the street. The defendant was in that group, and when he noticed the officers, he put his hands in his pockets and began to quickly walk away. Both officers testified that at that point, they had no reasonable suspicion nor probable cause to believe the defendant had engaged in any criminal behavior. Both officers ran after the defendant. As they did so, they yelled "Stop, Hollywood Police." The defendant then ran from the officers. As he ran, he pulled his hands from his pockets and dropped an object to the ground. Officer Bradford stopped momentarily to retrieve it while Lt. Wagner continued the chase. Based on their training and experience, both officers immediately recognized the object as a crack cocaine pipe. Lt. Wagner recognized it as such as soon as the defendant pulled it from his pocket. Officer Bradford immediately recognized the pipe as illegal contraband when he picked it up off the ground. Lt. Wagner and Officer Bradford again yelled "Stop, Hollywood Police" to the defendant. The defendant continued to run. Lt. Wagner and Officer Bradford continued to chase the defendant. They lost sight of him momentarily and then located him on the roof of a one-story apartment building. The defendant was ordered to get off the roof. He complied, attempted to run, was detained and arrested. A chemical test of the pipe confirmed it contained cocaine residue. After a jury trial, the defendant was convicted on all three counts.

The defendant raises three issues in this appeal. First, that the trial court erred in not granting his motion for judgment of acquittal on the charge of resisting an officer without violence. Second, that the trial court erred in permitting the prosecution to elicit the specific nature of the defendant's prior convictions during cross-examination. Finally, the defendant claims that the trial court erred in permitting the introduction of a laboratory report in evidence over his objection.

The Motion For Judgment Of Acquittal

The standard for reviewing the denial of a motion for judgment of acquittal was described by this court in Scott v. State, 693 So.2d 715, 716 (Fla. 4th DCA 1997) as follows:

When a defendant moves for a judgment of acquittal, he admits all facts adduced in evidence and every conclusion favorable to the state that a jury might reasonably and fairly infer from the evidence. The trial court should not grant a motion for judgment of acquittal unless there is no view of the evidence which the jury might take favorable to the state that can be sustained under the law. Rogers v. State, 660 So.2d 237 (Fla.1995) (citing Taylor v. State, 583 So.2d 323 (Fla.1991)). The test to be applied on review of the denial of a motion for judgment of acquittal is whether the jury might reasonably conclude the evidence fails to exclude every reasonable hypothesis of innocence.

Id. at 716 (citations omitted).

"To support a conviction under section 843.02, the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty." Jay v. State, 731 So.2d 774, 24 Fla. L. Weekly D956 (Fla. 4th DCA 1999)(citing S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995)). If the officer has either reasonable suspicion to stop the defendant, Calliar v. State, 714 So.2d 1134, 1135 (Fla. 1st DCA 1998), rev. granted, 727 So.2d 903 (Fla. 1998), or probable cause for arrest, Jones v. State, 640 So.2d 204, 205 (Fla. 4th DCA 1994), the element of the lawful execution of a legal duty is satisfied. The defendant is correct that "[f]light, standing alone, does not constitute obstructing an officer nor does it give rise to a well-founded suspicion of criminal activity." S.G.K., 657 So.2d at 1248; see Breedlove v. State, 605 So.2d 589 (Fla. 4th DCA 1992)

; F.E.C. v. State, 559 So.2d 413, 414 (Fla. 2d DCA 1990). "An individual may be guilty of unlawfully obstructing an officer if he flees while knowing of the officer's intent to detain him and the officer is justified in making a stop pursuant to the Stop and Frisk Statute." F.E.C., 559 So.2d at 414.

In the case before us, the officers' original pursuit of the defendant lacked both reasonable suspicion and probable cause. Had that been the only evidence of resisting, we would reverse. However, the evidence placed before the jury included testimony that during the initial invalid pursuit, the defendant dropped his cocaine pipe and it was found by Officer Bradford. As discussed above, Lt. Wagner recognized it as a cocaine pipe as soon as the defendant pulled it from his pocket. Officer Bradford immediately recognized the pipe as illegal contraband when he picked it up off the ground. At that point, the officers had probable cause to arrest the defendant. The officers continued to yell, directing the defendant to stop. His flight, in conjunction with probable cause for arrest, was sufficient to establish guilt of the charge. The trial court properly denied the defendant's motion for judgment of acquittal.

The Impeachment Of The Defendant

In his second point on appeal, the defendant claims that the trial court erred in permitting the state to cross-examine him about the specifics of his prior criminal record. "[A] trial court is given broad discretion when making a determination as to whether to admit or exclude evidence, and that decision will not be overturned absent a showing of an abuse o[f] discretion." Traina v. State, 657 So.2d 1227, 1229 (Fla. 4th DCA 1995).

The authority to impeach a witness through the use of prior criminal convictions is found in Florida Statute section 90.610(1) which provides:

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 the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, ....

§ 90.610(1), Fla. Stat. (1997).

The proper method for impeaching a witness by the use of prior convictions has been set forth by this court. Counsel is required to use the following format:

Q: Have you ever been convicted of a felony?¹

(If the answer is affirmative:)

Q: How many times?

Q: Have you ever been convicted of a misdemeanor involving dishonesty or false statement?²

(If the answer is affirmative:)

Q: How many times?

Counsel may not ask the questions of the witness unless he or she has knowledge that the witness has in fact been convicted of the crime or crimes. See Cummings v. State, 412 So.2d 436, 439 (Fla. 4th DCA 1982)

.

The general rule is that "[i]f [the witness] denies the conviction, the opposing party may produce the record of the conviction. In either event, the inquiry must stop at that point. The matter may not be pursued to the point of naming the crime." Kyle v. State, 650 So.2d 127, 127 (Fla. 4th DCA 1995)

. An exception to the general rule occurs when a defendant opens the door to a broader inquiry.³ In Fotopoulos v. State, 608 So.2d 784 (Fla. 1992) our supreme court ruled:

Under section 90.610, Florida Statutes (1989), a party may attack the credibility of any witness, including the accused, by evidence of a prior felony conviction. Unless the witness answers untruthfully, this inquiry is generally restricted to the existence of prior convictions and the number of convictions. However, when a defendant attempts to mislead or delude the jury about his prior convictions, the State is entitled to further question the defendant concerning the convictions in order to negate any false impression given.

Id. at 791 (citations omitted). In Fotopoulos, the defendant was asked whether he had previously been convicted of a felony. He responded that he "was at one time convicted of six counts." On cross-examination the defendant contended all six felonies arose at the same time from a single incident. The state was then permitted to go into the details of the defendant's prior convictions for counterfeiting. The supreme court held the inquiry was proper.

In Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997), this court discussed the subject extensively. We said:

To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled. See Brown v. State, 579 So.2d 898 (Fla. 4th DCA 1991)

; Dodson v. State, 356 So.2d 878 (Fla. 3d DCA 1978); Hernandez v. State, 569 So.2d 857 (Fla. 2d DCA 1990); Davis v. State, 216 So.2d 87 (Fla. 2d DCA 1968); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994); Fletcher v. State, 619 So.2d 333 (Fla. 1st DCA 1993). The "opening the door" concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination.

For example, in McCrae v. State, 395 So.2d 1145 (Fla.1980), defense counsel through his questions on direct examination "tactfully attempted to mislead the jury into believing that [the defendant's] prior felony was inconsequential."

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