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Pryor v. State8/12/2003
es.
Not only did Gilbert testify falsely about the number of prior felony convictions, he also lied about the nature of those convictions. Gilbert was not the inoffensive town drunk he passed himself off to be. Where a witness attempts to mislead or delude the jury about his prior convictions, the witness is subject to further questioning concerning his convictions "in order to negate any false impression given." Fotopoulos v. State, 608 So. 2d 784, 791 (Fla. 1992). The trial court's ruling on the admissibility of Gilbert's criminal history kept crucial information from the jury and prevented the defense from emphasizing Gilbert's actual criminal background in response to the State's closing argument, which referred to Gilbert as a "drunk" who "told the truth."
We next turn to the trial judge's finding that the 1967 conviction was too remote for use as impeachment evidence. In a civil trial, the test for exclusion of this evidence due to remoteness is a requirement that the prior conviction be so remote in time as to have no bearing on the present character of a witness. See § 90.610(1)(a), Fla. Stat. (2001). However, section 90.610 does not provide for exclusion of evidence of even remote convictions in a criminal trial. See § 90.610(1)(a), Fla. Stat.; Peoples v. State, 576 So. 2d 783 (Fla. 5th DCA 1991) (noting that, although section 90.610(1), "precludes evidence in a civil trial of a conviction so remote in time as to have no bearing on the present character of a witness, it does not prohibit such evidence in a criminal trial."). Although not statutorily recognized in section 90.610, the possibility of remoteness as a basis for exclusion in a criminal case has been recognized by our Supreme Court through the provisions of section 90.403, Florida Statutes. See Riechmann v. State, 581 So. 2d 133, 140 (Fla. 1991). We therefore conclude that exclusion of a prior conviction as too remote for use as impeachment evidence in a criminal trial must meet the same test as required in a civil trial. Under that test, Gilbert's 1967 conviction can only be excluded if it has no bearing on his present character. Since Gilbert has continued to acquire felony convictions, it cannot be said that the 1967 conviction has no bearing on his present character. Thus, Gilbert's 1967 conviction is admissible for impeachment purposes.
Harmless Error
The State argues that, if the trial court erred by improperly excluding the certified copies of convictions, the error was harmless as defined by State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). For the trial court's error to be harmless, the State, as beneficiary, must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." See Goodwin v. State, 751 So. 2d 537, 541 (Fla. 1999) (citations omitted). Gilbert was the State's eye witness, and he lied about both the number and nature of his convictions. Gilbert's testimony essentially eliminated Appellant's self defense and manslaughter arguments. The State compounded Gilbert's misrepresentation by using it to bolster his credibility during closing argument, and did so after seeing the certified copies indicating the nature and number of Gilbert's convictions. Had the jury known of Gilbert's false testimony as to his prior record, it is possible they would have evaluated his credibility differently, and may have acquitted Appellant, or convicted him of a lesser offense. Thus, the error is not harmless because it cannot be said, beyond a reasonable doubt, that it did not contribute to the verdict.
Disposition
Based on the forego
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