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Pryor v. State8/12/2003
This is an appeal from a conviction of first degree murder following a jury trial. Appellant, John Pryor, raises two issues for our consideration. The first is whether the trial judge erred by excluding certified copies of a State witness's criminal convictions. The witness falsely testified as to the number and nature of his prior felony convictions on both direct and cross examination. In the defense's case in chief, defense counsel attempted to introduce certified copies of the prior convictions, but the court sustained the State's objection and excluded the records. The second issue is whether Appellant's attorney impermissibly conceded guilt to the jury. Since we find the first issue meritorious, it is unnecessary to reach the second. We reverse Appellant's conviction and remand for a new trial.
Factual Background
The State, in an apparent attempt to ameliorate the expected effect of the anticipated evidence, asked their eye witness, Robert Lee Gilbert (Gilbert) on direct examination whether he had prior convictions. Gilbert testified "it's been about 6 or 7 times, mostly for DUI and driving with no license and stuff like that." On cross, defense counsel asked Gilbert the number of his prior felony convictions. Gilbert replied "It's been about 5 DUIs." Defense counsel asked: "DUI is not always a felony, are you counting that as a felony?" Gilbert replied: "Yeah, that's after so many of them you go , you know, they turn them into felony now. It's a felony now if I just drive." Defense counsel asked: "So you've got maybe 5 or 6 or 7 felony convictions?" Gilbert responded: "That's why I don't get up under the wheel of a vehicle. If I go anywhere I get somebody to carry me."
After the State rested, Appellant sought to introduce into evidence certified copies of Gilbert's eight felony convictions. The convictions were for: (1) breaking and entering with the intent to commit a misdemeanor, 1967; (2) possession and sale of a controlled substance, 1980; (3) escape, 1985; (4) felony DUI, 1989; (5) battery on a law enforcement officer, 1993; (6) aggravated assault, 1997; (7) felony driving while licence revoked, 1999 and (8) aggravated assault, 1999. The State strenuously objected to the introduction of these convictions for various reasons, including the procedure used to introduce the records, and that the certified copies of convictions were Gilbert's. Appellant argued Gilbert failed to answer the question correctly, and thus the defense was entitled to introduce the documents.
The trial judge, after finding the convictions were Gilbert's, concluded the prejudicial effect to the State, of placing the certified copies into evidence, would substantially outweigh their probative value. The court went on to find the 1967 conviction was too remote in time to be used for impeachment. We address two aspects of the court's ruling: the exclusion of the certified copies of conviction, and the finding that the 1967 conviction was too remote to use as impeachment.
Discussion
The rule is simple. Certified copies of prior convictions are admissible to impeach a witness who falsely testifies as to the number of crimes for which he has been convicted. See § 90.610(1), Fla. Stat. (2001). The witness testifies falsely when the answer varies from the actual number of prior convictions. Thus, a witness who estimates the number of convictions, either above or below the actual number, testifies falsely and the certified copies are admissible. See Perez v. State, 648 So. 2d 715 (Fla. 1995). Gilbert testified falsely by giving several different answers to questions regarding his past convictions. This false testimony permits the admission of the certified copi
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