State v. Raydo

• Decision Date: 25 June 1998
• Docket Number: No. 91161,91161
• Citation: 713 So.2d 996
• Court: Florida Supreme Court
• Parties: 23 Fla. L. Weekly S361, 23 Fla. L. Weekly S404 STATE of Florida, Petitioner, v. Bryan Joseph RAYDO, Respondent.

Page 996

713 So.2d 996

23 Fla. L. Weekly S361, 23 Fla. L. Weekly S404

STATE of Florida, Petitioner, v. Bryan Joseph RAYDO, Respondent.

No. 91161.

Supreme Court of Florida.

June 25, 1998.

Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Petitioner.

Nancy A. Daniels, Public Defender and Raymond Dix, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Respondent.

PARIENTE, Justice.

We have for review Raydo v. State, 696 So.2d 1225 (Fla. 1st DCA 1997), which expressly and directly conflicts with Parker v. State, 563 So.2d 1130 (Fla. 5th DCA 1990). The conflict issue is whether, when a defendant does not testify, a ruling regarding impeachment of a defendant pursuant to section 90.610(1), Florida Statutes (1995), is preserved for review. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Bryan Joseph Raydo was charged by separate informations with crimes arising from two unrelated criminal episodes occurring within one week: (1) burglary and petit theft; and (2) robbery. Raydo pled nolo contendere to the burglary and petit theft charges, but proceeded to trial on the robbery charge.

After the State presented its case against Raydo, defense counsel indicated that he planned to call Raydo to testify. The prosecutor requested a preliminary ruling from the trial court that, if Raydo testified, he could be impeached with evidence of his nolo contendere plea to the burglary and petit theft charges (even though he had not yet been adjudicated or sentenced on these charges). The State argued that a plea of nolo contendere amounted to a "prior conviction" for impeachment purposes.

Relying on Johnson v. State, 449 So.2d 921 (Fla. 1st DCA 1984), and Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), the trial court ultimately ruled that the State could impeach Raydo with the nolo contendere plea in the event that he testified. After the adverse ruling, defense counsel announced that he would present no defense witnesses.

The trial court then specifically advised Raydo that he had the right to testify. Raydo acknowledged on the record that he was voluntarily foregoing that right. The trial court also inquired whether anyone had forced or pressured him into not testifying, to which Raydo responded in the negative. Raydo never proffered his proposed defense testimony. ¹ The defense rested and the jury thereafter returned a guilty verdict against Raydo on the robbery charge.

PRESERVATION OF CLAIM OF ERROR

On appeal, Raydo argued that the trial court erred in ruling that the State could impeach him with evidence of his nolo contendere plea if he took the stand. The First District determined that the issue had been preserved for review, even though Raydo failed to testify, citing its decision in Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982), disapproved on other grounds, State v. Page, 449 So.2d 813 (Fla.1984). See Raydo, 696 So.2d at 1226. In Hall, the First District concluded: "Inasmuch as the right to testify on one's behalf is a fundamental right, we conclude against requiring that a defendant must testify in order to preserve his or her argument for appellate review." 409 So.2d at 95 (citation omitted).

The State argued that Hall had been overruled by the Supreme Court's decision in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, the Supreme Court held that a defendant must testify in order to preserve for review a claim of improper impeachment with a prior conviction under Federal Rule of Evidence 609(a) (regarding impeachment by prior convictions). The First District determined that Luce was not persuasive authority, reading "Hall as being premised primarily on State constitutional grounds." Raydo, 696 So.2d at 1226.

In contrast, in Parker the Fifth District adopted the reasoning of Luce by holding that, because the defendant did not testify, the impeachment issue had not been preserved for appellate review. ² See Parker, 563 So.2d at 1131-32. Addressing a similar preservation issue in Jimenez v. State, 480 So.2d 705, 706 (Fla. 3d DCA 1985), the Third District, relying on Luce, also held that "no error was committed in ruling that certain similar crimes evidence could be used to impeach the defendant because the defendant did not elect to testify in this cause and the said impeachment evidence was never introduced below." See also State v. Wilson, 509 So.2d 1281 (Fla. 3d DCA 1987)(adopting Luce in holding that a claim of improper impeachment of character witnesses was not preserved for review where the defendant made a tactical election not to present character witnesses). However, neither the Fifth District in Parker nor the Third District in Jimenez addressed the state constitutional concerns raised in Raydo and Hall.

Because Raydo did not testify, the substance of his testimony is unknown and the impeachment evidence claimed to be impermissible was never introduced into evidence. Under our usual procedures governing appellate review, these circumstances alone would ordinarily preclude our review of a claim of error. See, e.g., Finney v. State, 660 So.2d 674, 684 (Fla.1995)(failure to proffer testimony makes it impossible to determine what effect error had on the result); see also Brundige v. State, 595 So.2d 276, 277 (Fla. 3d DCA 1992)(defendant's decision not to display his voice before the jury rendered the trial court's ruling unreviewable); § 90.104(1)(b), Fla. Stat. (1995).

The threshold question is whether Raydo's constitutional right to testify was violated by the trial court's decision to permit the State to impeach him with a nolo contendere plea. Article I, section 16 of the Florida Constitution provides in pertinent part that in all criminal prosecutions the defendant shall have the right "to be heard in person, by counsel, or both." A defendant's right to testify is a fundamental right under the state and federal constitutions. See Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993).

It does not necessarily follow, however, that all adverse evidentiary rulings which may influence a defendant's decision whether to testify violate the constitutional right to testify. This Court has recognized that

[p]lacing a defendant on the stand to testify is always a tactical decision because the State can ask the defendant about prior felony convictions. In choosing whether to testify, a defendant must weigh the benefits and detriments of allowing this information to be supplied to the jury.

Pangburn v. State, 661 So.2d 1182, 1190 (Fla.1995). As the Supreme Court stated in McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971):

It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination.... Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.

In Johnson v. State, 380 So.2d 1024 (Fla.1979), this Court rejected a constitutional challenge to the statute that provided for impeachment of the credibility of a witness Johnson is in accord with the Supreme Court's holding in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions without violation of the Fifth Amendment privilege. See also Ohio Adult Parole Authority v. Woodard, --- U.S. ----, ---- - ----, 118 S.Ct. 1244, 1252-53, 140 L.Ed.2d 387 (1998). In addressing a similar issue under both its state constitution and the federal constitution, the Connecticut Supreme Court held:

                by prior convictions. 3  This Court held that the procedure for impeachment with a prior conviction "does not place an unreasonable burden on a defendant's right to testify and does not violate a defendant's right to due process of law."  Id. at 1026
                

We recognize that a defendant may be faced with the dilemma of either testifying and facing the possibility of impeachment by prior convictions or not taking the stand and thus not personally being able to present his version of events to the jury. Nevertheless, it has been recognized that the constitutional right to testify does not carry with it a right to prohibit impeachment by prior convictions.

State v. Harrell, 199 Conn. 255, 506 A.2d 1041, 1045 (1986); see also State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987); Morgan v. State, 891 S.W.2d 733, 736 (Tex.Ct.App.1994).

If actual impeachment by a prior conviction does not impermissibly violate an accused's right to testify, it follows that a preliminary ruling concerning the use of a nolo contendere plea for impeachment does not impermissibly violate that right. As observed by the Oregon Supreme Court in a similar context:

The trial court's ruling, that the [prior crime] impeachment evidence was admissible, did not preclude the defendant from testifying.... Defendant's choice, not the trial court's ruling, resulted in the jury's not hearing defendant's testimony.

....

Defendant's decision in this case not to testify, when to do so would entail exposure of his criminal record, was a component of his overall trial strategy.

State v. Busby, 315 Or. 292, 844 P.2d 897, 899 (1993).

The Supreme Court in Luce never directly confronted whether its holding would violate the Fifth Amendment right to testify. It did so indirectly when it distinguished several of its earlier decisions where it had "reviewed Fifth Amendment challenges to state-court rulings that operated to dissuade defendants from testifying," despite the fact that in those cases the defendant had not testified. Luce, 469 U.S. at 42, 105 S.Ct. 460. Specifically, the Supreme Court distinguished New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59...