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Conviction of Driving With Suspended License Reversed Because of Improper Questions by Prosecutor

The case of Barcomb v. State, 36 Fla. L. Weekly D1983a (Fla. 4th DCA September 7, 2011) presents a good analysis of what is required to properly question a defendant about a prior felony conviction.

Barcomb had been convicted of felony driving while license revoked. On the night before the trial began the prosecutor advised defense counsel that Barcomb had a conviction of a felony in New York based upon a NCIC report.

The defense disputed the record and asked the court to require that the state not cross-examine the defendant on the conviction unless the prosecutor could prove that Barcomb was in fact convicted of a felony in New York.

The judge denied the defendant's request and held that the prosecutor had a good faith basis to ask the question "Have you ever been convicted of a felony?"

The prosecutor did not have a certified copy of the Judgment of the prior conviction from New York and advised the court that if the defendant's answer to that question was no, that the inquiry would end there and the state would thereafter get a certified copy of the Judgment and prosecute the defendant for perjury.

The trial court further held that the prosecution's possession of the NCIC rap sheet allowed the state to have a good faith belief of a prior conviction and therefore could ask the question.

Barcomb testified at trial together with his girlfriend and his son that they were coming back from an evening out and the girlfriend had a severe migraine headache and could not drive. Because she could not drive and they were stuck on I-95, it was Barcomb's belief that he had to drive home and that was why he got behind the wheel. Both the girlfriend and son testified in conformity with the defendant's version of the facts.

On cross-examination the prosecutor asked the defendant whether he had ever been convicted of a felony and the defendant responded that he unsure.

The court then went over the law in Florida. It cited to the case of Cummings v. State, 412 So. 2d 436, 439 (Fla. 4th DCA 1982); which states in pertinent part:

Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit number of convictions of such crimes.

The court also noted, "The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true."

Florida Rule of Evidence 90.610 describes the convictions that are admissible to impeach but not the procedure used to properly impeach with a prior conviction. That procedure, however, has been established by Florida appellate decisions.

The court noted that the questioning attorney must be in possession of a certified copy of the judgment of conviction in order to ask the question concerning a prior conviction.

The court analyzed certain exceptions to this rule. For example, when the prosecutor has a certified copy of the judgment of conviction in the prosecutor's office but not necessarily in court, and that said judgment of conviction is able to be retrieved for proper use at the trial.

The court commented:

In contrast to these cases, the prosecutor in this case obtained on the eve of trial only an NCIC sheet indicating a prior DUI conviction in New York. She did not notify defense counsel of her intent to use it until after the trial had started, and she did not have certified copies of the conviction, or as in Peterson, an affidavit from New York attesting to the accuracy of the report.

Likewise the court noted that the prosecutor had not attempted to secure a certified copy of the conviction.

The court further commented that mere possession of a rap sheet without attempting to obtain certified copies of the convictions or to corroborate the conviction, is not sufficient to permit counsel to pose impeaching questions based upon prior convictions.

During the appeal the state contended that any error as a result of the prosecutor's conduct was harmless because defense counsel first raised the question of the defendant's prior conviction by asking on direct examination about a prior conviction. The court rejected this theory noting that defense counsel raised the issue on his direct examination after the trial court had already ruled that the state could ask the question about prior felonies even without having a certified copy of the judgment. The court cited to the case of Rodgers v. State, 948 So. 2d 655 (Fla. 2006), quoting from Sheffield v. Superior Ins. Co., 800 So. 2d 197, 203 (Fla. 2001):

[O]nce a trial court makes an unequivocal ruling admitting evidence over a movant's motion in limine, the movant's introduction of that evidence does not waive the error for appellate review.

While one would hope that attorneys would understand the requirements of impeachment through prior conviction this case is an example that such an assumption is not always correct. The Barcomb case is a good decision that defense counsel can use if confronted with improper impeachment by the prosecutor.