FRANK EMERSON WILT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Frank Wilt was convicted of second-degree murder and firearm possession in a barroom shooting and sentenced to fifty years. The Florida District Court of Appeal reversed, holding that the prosecutor's cross-examination improperly attacked Wilt's character by questioning him about the legal prohibition on felons carrying firearms, which constituted reversible error.
Yes. The court reversed and remanded for a new trial, holding that the prosecutor's question improperly introduced evidence of another crime (felon in possession of a firearm) not material to the issues and served only to establish criminal propensity, violating nearly a century of Florida law protecting defendants from character attacks unless they place their character in issue.
[1] A prosecutor's cross-examination question that elicits evidence of a crime for which the defendant has not been charged, and which is not material to the issues being tri…
[2] A defendant's prior conviction is relevant to credibility, but further questioning about the conviction after admission constitutes an attack on character, which is imper…
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Join FLexlaw to unlock all legal intelligence“once that admission has been obtained, further questioning must be viewed as an attempt to attack character. For nearly one hundred years, it has been the law in Florida that unless a defendant has placed his character in issue, such an attack deprives him of a fair trial and constitutes reversible error.”
Establishes the core holding that character attacks after credibility impeachment violate well-established Florida law
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Join FLexlaw to unlock all legal intelligenceWilt shot and killed James Yates following a barroom fight. Wilt claimed self-defense, asserting Yates approached him with broken glass. During direct…
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BASKIN, Judge.
During his trial for second-degree murder and possession of a firearm during the commission of a felony, arising from the shooting of James Yates following a fight in a barroom, defendant Wilt sought to establish that he killed Yates in self-defense. He failed to convince the jury, however, and upon conviction was sentenced to serve fifty years in the state penitentiary. This appeal ensued.
Wilt contends that the trial court erred when it denied his motion for mistrial based upon the state’s improper cross-examination. During direct examination, Wilt admitted that he had previously been convicted of a crime. The prosecutor cross-examined Wilt asking, “[A]s a convicted felon you are not allowed to carry a gun; are you?” Defense counsel objected, but the objection was overruled. His motion for mistrial was denied. We reverse.
In our view, the question introduced evidence of another crime, that is, the possession of a firearm by a convicted felon, which was not material to the issues being tried and served only to establish criminal propensity. While the fact that a defendant has previously been convicted of a crime is relevant to his credibility, once that admission has been obtained, further questioning must be viewed as an attempt to attack character. For nearly one hundred years, it has been the law in Florida that unless a defendant has placed his character in issue, such an attack deprives him of a fair trial and constitutes reversible error. Lewis v. State, 377 So. 2d 640 (Fla.1980); Young v. State, 141 Fla. 529, 195 So. 569 (1939); Mann v. State, 22 Fla. 600 (1886); Fla.Evid. Code, § 90.610, Fla.Stat. (1979).
Wilt took the stand to establish that the shooting occurred when the victim approached and threatened him with a piece of broken glass. Wilt admitted that he had a gun on his person and that he had been convicted of a crime. The state’s attempt to undermine his character or to show a propensity to commit other offenses was irrelevant to any material fact in issue. Williams v. State, 110 So. 2d 654 (Fla.1959); Mooney v. State (Fla. 1st DCA 1982) (Case No. XX-243, opinion filed January 6, 1982).1
We reject the state’s argument that if we find error we must deem it harmless because the testimony of other witnesses constituted overwhelming evidence of defendant Wilt’s guilt. The testimony merely confirmed that Wilt shot Yates but did not refute his contention that he acted in self-defense.
The remaining point has been decided by State v. Monroe, 406 So. 2d 1115 (Fla.1981); State v. Hegstrom, 401 So. 2d 1343 (Fla.1981); section 775.021(4), Florida Statutes (1979).
Reversed and remanded for a new trial.
. The defendant has not argued, nor do we address, the issue of the state’s failure to comply with Florida Evidence Code, section 90.-404(2), Florida Statutes (1979).
BARKDULL, Judge,
dissenting.
I respectfully dissent. I agree that the question in regard to the defendant, as a convicted felon, being in possession of a gun was improper; however, under the facts in this case as shown by the overwhelming evidence1 of the defendant’s guilt, it would appear that the harmless error doctrine should be considered and the conviction and sentence of second degree murder should be affirmed. See: Gordon v. State, 288 So. 2d 295 (Fla. 4th DCA 1974); Hamilton v. State, 356 So. 2d 30 (Fla. 3d DCA 1978); Keel v. State, 243 So. 2d 630 (Fla. 4th DCA 1974); Clark v. State, 378 So. 2d 1315 (Fla. 3d DCA 1980); United States v. Mayo, 646 F. 2d 369 (9th Cir. 1980).
. One witness actually testified he saw a gun in the defendant’s hand, and other witnesses did see the defendant raise his hand toward the deceased, heard the shot, and saw the deceased fall to the floor.
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Bates v. State, 422 So. 2d 1033 (Fla. 3d DCA 1982)…tion given was insufficient. Odom v. United States, 377 F. 2d 853, 859-60 (5th Cir.1967). It is fundamental that the prosecution may not impugn the character of an accused unless the accused first puts character into issue at trial. Wilt v. State, 410 So. 2d 924 (Fla. 3d DCA 1982); Hodges v. State, 403 So. 2d 1375 (Fla. 5th DCA 1981), petition for review denied, 413 So. 2d 877 (Fla.1982); Albright v. State, 378 So. 2d 1234 (Fla. 2d DCA 1979). We have carefully reviewed the record on appeal with its sharp…
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Cornatezer v. State, 736 So. 2d 1217 (Fla. 5th DCA 1999)…nklea v. State, 471 So. 2d 596, 597 (Fla. 1st DCA 1985). Here, Mr. Cornatezer’s right to receive a fair trial was compromised by Detective Gallant’s improper comment because the comment placed Mr. Cornatezer’s character in issue. See Wilt v. State, 410 So. 2d 924, 925 (Fla. 3d DCA 1982). Character was a central issue in this case because the defense case centered on the credibility of Mr. Cornatezer, who gave exculpatory statements to the police, while the state’s case relied on the credibility of Mr. Corna-…
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Dawkins v. State, 605 So. 2d 1329 (Fla. 2d DCA 1992)…r mistrial. The jury found Dawkins guilty of the lesser-included offense of aggravated battery with a firearm. The trial court sentenced Dawkins to a minimum mandatory three years in prison, followed by twelve years’ probation. As in Wilt v. State, 410 So. 2d 924 (Fla. 3d DCA 1982), evidence of a collateral uncharged crime, possession of a gun by a convicted felon, denied Dawkins a fair trial. The state contends that reversal is not required because the prosecutor never got an answer to the objectionable que…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- Enoch Lewis, Jr. v. State, 377 So. 2d 640 (Fla. 1979)
- State v. Williams, 406 So. 2d 1115 (Fla. 1981)
- Mann v. State, 22 Fla. 600 (Fla. 1886)
- Ojeda v. Louie Wainwright, 378 So. 2d 1315 (Fla. 1st DCA 1980)
- United States v. Mayo, 646 F.2d 369 (9th Cir. 1981)
- Young v. State, 142 Fla. 361 (Fla. 1939)
- Young v. State, 141 Fla. 529 (Fla. 1939)