Trapp v. State

57 So. 3d 269, 2011 Fla. App. LEXIS 4349, 2011 WL 1135168
CourtDistrict Court of Appeal of Florida
DecidedMarch 30, 2011
DocketNo. 4D09-225
StatusPublished
Cited by1 cases

This text of 57 So. 3d 269 (Trapp v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trapp v. State, 57 So. 3d 269, 2011 Fla. App. LEXIS 4349, 2011 WL 1135168 (Fla. Ct. App. 2011).

Opinion

WARNER, J.

The appellant challenges his convictions for false imprisonment and carjacking, claiming that the trial court erred in permitting the prosecutor to cross-examine him on a prior conviction of perjury. The prosecutor maintained that Trapp had opened the door to this by testifying that the victim could be charged with perjury if she testified. We conclude that the court [271]*271erred in permitting the appellant to .be cross-examined in this manner, and we cannot conclude that the error was harmless.

Jennifer Magala lived with her child at the Salvation Army residence. One day she got into her car to go get some cigarettes at a local liquor store with a drive up window. When she arrived at the drive up window, a man whom she said she had never seen before (appellant Trapp) got into the passenger side of her car. He had his hand under his shirt, and she thought he had a gun. He told her to drive away. She tried to park the car, but he made her pull into a driveway close to some pre-construction homes. She got out of the vehicle with her child and tried to retrieve her purse and the child’s bag. Trapp told her to leave it, and he drove off in the car. She had a cell phone in her pocket and immediately called 911. The tape of the 911 call was played for the jury. A police officer arrived very quickly, and she gave him a description of the man, the vehicle and the license plate. A couple of days later she was contacted by police and asked to view a photo line-up from which she identified the defendant, Craig Trapp. Later, her damaged car was recovered.

A couple of months before the trial Trapp called her on her cell phone, telling her not to testify. He made a few calls to her and at one point told her that if she lied, the authorities would take her child away from her.

Only one independent witness testified. Michael McGirt was at his home across the street from where Magala pulled into the driveway and got out of the car. McGirt testified that Magala looked shocked as the man, whom McGirt was able to identify as Trapp, drove off with the vehicle.

Trapp testified in his defense, and his version of events was dramatically different than that of Magala. He maintained that he knew Magala from the Salvation Army, knew that she had three children, and knew the father of her baby. On the day of the incident, he met her outside of the Salvation Army building, and she asked him to help her get some cocaine. After discussing the logistics of acquiring it, he told her he would use her car to go to a housing project where he thought he could obtain it. He denied getting into her car at the liquor store, nor did he use her car without her permission. He didn’t purchase cocaine, because when he got to his source, that person didn’t have any. He was going to go to another place to try to get it. He never called Magala to say he would be late. When he got to the second source for cocaine no one was there, which was a sign that the police had been by. He then went joy riding for a couple of days, drinking, and to visit some friends. Eventually, he ran out of gas. When he flagged down a police officer, he found out that Magala had reported the car as stolen. During his direct testimony, he admitted he had previously been convicted of ten felonies, two of which were crimes of dishonesty.

He admitted that he called Magala four times prior to the trial. On cross-examination, he said he called to say he was sorry because he betrayed her and lied to her. When he found out there were two kidnapping charges against him, he accused her of lying. He told her he didn’t kidnap her, didn’t carjack the car, and didn’t rob her. He denied that he had ever told Magala not to testify. He said she asked him, “What do you want me to do? Sign the waiver?” He said he told her, “No, don’t sign the waiver. Go down and tell the truth or leave it alone.” He told her, “If they catch you in any lies, they’ll charge you with perjury. You will go to jail. Your baby will go to HRS.”

[272]*272At that point the prosecutor asked, “Let’s talk about perjury,” to which defense counsel posed an objection. The prosecutor claimed that by mentioning the possibility of the victim’s perjury, defendant had opened the door for the prosecutor to question Trapp about a prior perjury conviction of his own.1 The court overruled the objection, and the prosecutor elicited that Trapp had been convicted of perjury in Mississippi. The prosecutor used this admission in closing argument. She argued that the jury had the opportunity to hear Magala testify, and there was no evidence that she was convicted of a crime. However, when the jury looked at the credibility of Trapp, the prosecutor told them that they should remember that he was a ten-time convicted felon and that two of those crimes involved dishonesty. The prosecutor argued, “You have been able to hear he has been convicted of perjury, and perjury is lying on the stand. He wanted you to believe during the course of the testimony that the victim came in here and committed perjury because he was just borrowing her vehicle. I want you to really think-about the credibility of the story.”

The jury deliberated, requiring the read back of both the independent witness’ testimony and Trapp’s testimony. They informed the court that they were unable to come to an agreement on a verdict. The court gave an Allen charge to which neither side objected, and the jury returned to deliberate and ultimately returned a verdict. On the two kidnapping charges the jury found Trapp guilty of the lesser included charges of false imprisonment. On the count charging carjacking, they found him guilty as charged.

The trial court subsequently sentenced-Trapp. Prior to sentencing, Trapp made a pro se motion for new trial, as did defense counsel. Trapp asserted that the Mississippi perjury charge was actually giving a false name. Both motions were denied. Trapp was sentenced to ten years on the two false imprisonment convictions and, for'the carjacking, he was sentenced as a habitual offender to life with a 30-year minimum mandatory as a prison re-leasee reoffender. He now appeals, arguing that the trial court erred in permitting the state to elicit testimony regarding his prior conviction in Mississippi for perjury.

Evidentiary rulings on the admission of evidence of other crimes are reviewed under an abuse of discretion standard. Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006). However, the trial court’s discretion is restricted by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Subsection 90.610(1) of the Florida Evidence Code 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 he was convicted, or if the crime involved dishonesty or a false statement regardless of the .punishment....

In Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994), we explained that this provision permitted a witness to be questioned regarding prior convictions only as to the number of felonies but not as to whether they involve crimes of dishonesty. A party could not ask a witness whether he or she had been convicted of felonies involving [273]*273dishonesty or false statement, because the legislature had permitted impeachment by prior felonies, regardless of type. We said:

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Related

Coleman v. State
126 So. 3d 1199 (District Court of Appeal of Florida, 2012)

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Bluebook (online)
57 So. 3d 269, 2011 Fla. App. LEXIS 4349, 2011 WL 1135168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trapp-v-state-fladistctapp-2011.