Opinion
No. 84-1022.
December 3, 1985. Rehearing Denied January 20, 1986.
Appeal from the Circuit Court, Dade County, Maria Korvick, J.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Randi Klayman Lazarus, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
The defendant appeals his conviction of trespass and resisting an officer without violence. We affirm.
The sole issue on appeal is whether the trial court erred by disallowing the defendant's attorney to question the defendant on direct examination about the specifics of six prior convictions where the defendant had just admitted the convictions in response to questions posed by defense counsel during the same direct examination. We find that the trial court did not err and that the defendant's reliance on Noeling v. State, 40 So.2d 120 (Fla. 1949), is misplaced.
In Noeling, the prosecutor impeached the defendant on cross-examination by eliciting from the defendant that he had been convicted of four misdemeanors. The supreme court ruled that the trial court impermissibly disallowed the defendant on redirect to explain the nature of those convictions to show whether they materially affected his credibility. The court's decision was based upon the principle that "a party may re-examine a witness about any matter brought out on cross-examination." 40 So.2d at 121. 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. Noeling. See Johnson v. State, 380 So.2d 1024 (Fla. 1979); McArthur v. Cook, 99 So.2d 565 (Fla. 1957); Goodman v. State, 336 So.2d 1264 (Fla. 4th DCA 1976).
In the present case, the defendant's position might have merit if the testimony sought to be elicited had come after the defendant had been impeached by the state with his prior convictions and defense counsel was seeking to rehabilitate him. The testimony, however, was sought during the direct examination of the defendant. Thus, the questions concerning the specifics of the defendant's six prior convictions were both untimely and improper and the trial court correctly sustained the state's objection thereto. See Price v. State, 469 So.2d 210 (Fla. 5th DCA 1985). See also Ryan v. State, 457 So.2d 1084, 1092 (Fla. 4th DCA 1984).
The common practice among defense attorneys of revealing a defendant's prior conviction on direct examination to "soften the blow" or to demonstrate forthrightness, is arguably contrary to the rule which prohibits a party from attacking the credibility of its own witness. See § 90.608(1)(c), Fla. Stat. (1983). This court, in dicta, however, has indicated that such a practice "is ordinarily a well-justified tactical decision," Wright v. State, 446 So.2d 208, 209 (Fla. 3d DCA 1984), and a number of other courts have apparently sanctioned the procedure without discussion of the rule against impeaching one's own witness. See Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981); Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980). The commentators generally do not view the practice as "impeachment" and, therefore, find no conflict with the rule against impeaching one's own witness. See, e.g., C. Ehrhardt, Florida Evidence § 610.6 (2d ed. 1984). The conclusion that revealing prior convictions on direct examination is not impeachment supports our decision that the rule emanating from Noeling, which permits rehabilitation through explanation of the nature of the convictions, is not applicable in the present case. Although in some circumstances the defense is deemed to have "opened the door" so as to allow the prosecutor to ask about the particulars of prior convictions, see McCrae v. State, 395 So.2d 1145, 1151-52 (Fla. 1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981); Nelson v. State, 395 So.2d 176 (Fla. 1st DCA 1980), the defense cannot open the door itself to go into impermissible areas to bolster the defendant's credibility before that credibility has been attacked.
"Anticipatory rehabilitation" not only "scrambles the orderly procedure laid out by the Florida Rules of Evidence," Ryan, 457 So.2d at 1092, but it also secures the admission of testimony that otherwise might not be permitted to be placed before the jury. In reversing a trial court for permitting the state to anticipatorily rehabilitate a state witness concerning a prior inconsistent statement, the court in Price explained:
The State "anticipates" impeachment of its own witness by the defense at the State's peril because the option is always with the defense to impeach or not. The defense often quite reasonably does not impeach a particular witness because the defense knows that the evidence that the State is entitled to present on rehabilitation of its witness will be much more harmful to the defense than any benefit derived from an impeachment of that witness. In addition, in such circumstances the State is always vulnerable to the assertion by the defense counsel that he was going to forego impeachment.
469 So.2d at 211-12. Cf. Erp v. Carroll, 438 So.2d 31, 39 (Fla. 5th DCA 1983) (condemning procedure used by a party as "a device or artifice to get into evidence before the jury that which would otherwise be inadmissible" (quoting from Foremost Dairies, Inc. v. Cutler, 212 So.2d 37, 40 (Fla. 4th DCA 1968)).
Accordingly, the judgment on the convictions appealed is
Affirmed.
HENDRY, J., concurs.
I concur in affirmance for reasons which differ completely from those assigned by the court.
In the first place, contrary to Price v. State, 469 So.2d 210 (Fla. 5th DCA 1985) and the majority opinion, I agree with the second district's conclusions in Bell v. State, 473 So.2d 734 (Fla. 2d DCA 1985), and Sloan v. State, 472 So.2d 488 (Fla. 2d DCA 1985), that there is nothing magical about the order in which admissible impeachment and explanatory evidence is introduced at trial. Thus, in the present context, I see no reason to prevent the defendant from any proper effort to mitigate the adverse effect of his previous convictions during his direct testimony. See also Wright v. State, 446 So.2d 208 (Fla. 3d DCA 1984); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981); Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980).
I do not however believe — and in this respect also I am seemingly in conflict with the majority in its indication that "the defendant's position might have merit if the testimony sought to be elicited had come after the defendant had been impeached by the state," slip op. at 2 — that Lawhorne's was in fact a permissible attempt to "soften the blow." In Johnson v. State, 380 So.2d 1024 (Fla. 1979), the supreme court, quoting from McArthur v. Cook, 99 So.2d 565 (Fla. 1957), indicated the appropriate bases for attempting to explain previous convictions:
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. [e.s.]McArthur, 99 So.2d at 567. But Lawhorne's proffer did not involve any of these appropriate reasons. He sought to show only that each of his multiple previous convictions was entered on a plea of guilty; thus, it would appear, seeking to raise the implication that, because he had admitted guilt in the past, he must not be guilty of the present charges which he specifically contested and denied on the stand. I am aware of no authority which would permit the admission of such testimony upon this bizarre theory. To the extent that it can be categorized at all within accepted evidentiary principles, the prior pleas would seem to involve an attempt to bolster one's credibility by showing that he had told the truth on some previous specific occasions. Such evidence is of course plainly inadmissible. See §§ 90.404-.405, 90.609-.610, Fla. Stat. (1983). Thus, I would uphold the exclusion of the evidence not because of when it was offered, but because of what it contained.
The admission of such testimony would open the door to endless collateral evidence as to all the underlying circumstances — the proposed plea-bargain, the evidence against the defendant, and the like — which led to the guilty pleas in the previous cases and the trial in the instant one respectively. But see § 90.403, Fla. Stat. (1983).
Even beyond this — and perhaps this consideration should have come first — I think this case should be disposed of on grounds which would make unnecessary both the majority's erudite discussion on the merits, including the conflict it creates with Bell and Sloan, and the statement of my quite different views. Lawhorne was found guilty of three misdemeanors on evidence which, in my opinion, overwhelmingly established that he committed not only those offenses, but also a felony on which he was acquitted. In these circumstances, I think it apparent that the trial judge's ruling on the evidentiary issue was entirely harmless.