Peterson v. State

645 So. 2d 10, 1994 Fla. App. LEXIS 8854, 19 Fla. L. Weekly Fed. D 1921
District Court of Appeal of Florida·Decided September 14, 1994·No. No. 93-1838·Published·Cited by 2 cases

Opinion

SMITH, FREDRICKA G., Associate Judge.

Peterson appeals his judgment of conviction for second degree murder entered upon [11]*11a jury verdict. Although he raises several points on appeal, we find that only one merits discussion and none require reversal.

For our purposes, the only relevant fact is that Peterson testified at trial in support of his claim that he acted in self-defense when he stabbed the victim, and therefore placed his credibility in issue. He now contends that the trial court erred when it allowed the prosecutor to ask him whether he had been convicted of a felony or a crime involving dishonesty, when the prosecutor did not have in hand certified copies of the convictions.

At the close of the state’s case, defense counsel moved in limine to preclude the state from asking the defendant whether he had been convicted of a crime. At a hearing out of the jury’s presence, defense counsel acknowledged that the prosecutor had in discovery furnished him with copies of a report from the state of New York Criminal Justice Services and an accompanying affidavit certifying that the document contained true and exact copies of criminal records of Michael Clifford Peterson, including the date of birth and other information identifying the defendant. In addition, the state had provided a copy of the national crime index computer printout listing the criminal record of Michael Clifford Peterson showing the same date of birth and other identifying information. As a matter of strategy, defense counsel had waited until the state had rested its case to bring his objection to the state’s and the court’s attention, believing that the state did not have certified copies of the convictions and that without them, even if there was no specific challenge to the accuracy of the “rap sheets”, the state could not inquire into his client’s criminal record.

At the hearing, when the trial judge reviewed the “rap sheets” with counsel, the prosecutor stated he had a good faith belief that the defendant had at least three felony convictions: one in 1973 for bribery of a public servant, one in 1976 for conspiracy to distribute cocaine, and one in 1978 for use of communication to facilitate the distribution of narcotics. Defense counsel specifically objected to the 1978 conviction, claiming that his client would deny that conviction.1 The prosecutor then agreed to “settle for two” and to pose the questions simply, “Have you ever been convicted of a felony?” and “How many times?” Further, the prosecutor agreed that even if defense counsel during redirect examination brought out the dates of the prior convictions, the prosecutor would ask for no further details. Following this discussion, the trial court ruled that the questions could be asked.

When the trial resumed, the defendant was cross-examined as follows:

BY MR. BUCKNER: [prosecutor]
Q. Have you ever been convicted of a felony, sir?
A. Yes.
Q. How many times?
A. Once.
Q. Other than that, have you ever been convicted of a misdemeanor involving dishonesty? 2
A. Yes.
Q. How many times?
A. Once.
Q. That is all.
REDIRECT EXAMINATION
BY MR. LUBIN: [defense counsel]
Q. When was that, how many years ago?
A. It was, 20 years ago — over 20 years ago.
Q. Both of those?
A. Yes.

In view of the procedure that was followed by the trial court, which allowed the defendant an opportunity to contest the aecu-[12]*12racy of the information regarding his prior record and challenge whether, even if accurate, it could be used to impeach, and in view of the manner in which the questions were actually asked and answered, we cannot agree with appellant that the absence of certified copies of convictions in hand before questioning the defendant requires reversal.3

The language in Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), upon which appellant relies as stating the “rule” prohibiting questions regarding prior convictions unless the prosecutor has certified copies of convictions in hand to introduce as impeachment, is neither the court’s holding in the case, nor an absolute proscription requiring reversal in every case where the suggested procedure is not followed. In Cummings, the court addressed the proper form of questions to be asked when attacking a witness’s credibility on the basis of past convictions under the newly enacted evidence code, specifically section 90.610(1), Florida Statutes (1979). Under the new code, it was no longer permissible to ask a witness about previous convictions of any crime; the witness could be asked only about felony convictions or any crimes involving dishonesty or false statement.

Cummings’s attorney asked his client on direct examination how many times he had been convicted of a felony. His client answered, “once.” On cross-examination, the prosecutor, over objection, posed the question in the improper form: “How many times have you been convicted of a crime?” To this question, the defendant responded, “five to seven”. The jury had now heard evidence regarding irrelevant criminal incidents, that is, misdemeanors not restricted to those involving dishonesty or false statement, and the defendant was clearly prejudiced. The question of whether the prosecutor possessed certified copies of convictions never arose since there was no need to contradict the defendant’s testimony. In fact, the prosecutor argued in closing that the answer the defendant gave (five to seven crimes) was correct, and that the defendant had lied in responding to his attorney’s “misleading” question that he had only one felony conviction.

Turning back to the case before us, we agree that had the defendant denied his prior convictions, the only permissible manner of impeaching him would have been by the introduction of certified records of the convictions.4 The “rap sheets” would not have been admissible, nor would any further questioning on the subject have been allowed. Irvin v. State, 324 So.2d 684 (Fla. 4th DCA), cert. denied, 334 So.2d 608 (Fla.1976). The state would have had to obtain certified copies of the convictions for introduction in its rebuttal case, or would have been “stuck” with the unimpeached denial of prior crimes.5

Peterson urges that even though a defendant admits prior convictions, he can still be prejudiced. He contends his admission does not do away with his right to challenge the [13]*13lack of certified copies, although the need to use them never arises. He relies on Rivers v. State, 423 So.2d 444 (Fla. 4th DCA 1982), quashed, 456 So.2d 462 (Fla.1984), a ease having nothing to do with “rap sheets” or certified copies. In Rivers, the trial court, over the defendant’s objection, ruled that convictions for petty theft could be used for impeachment and threatened the defendant with contempt if he denied he had been convicted of a crime.

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Peterson v. State, 645 So. 2d 10, 1994 Fla. App. LEXIS 8854, 19 Fla. L. Weekly Fed. D 1921 (Fla. Ct. App. 1994).

645 So. 2d 10 (Peterson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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