ROBERT TAMPLING AND KIMBERLY TAMPLING, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that while jury tampering may be a crime involving dishonesty, the prosecutor's method of impeachment was improper, requiring reversal of the conviction.
[1] A trial court does not abuse its discretion by ruling that jury tampering is a crime involving dishonesty for impeachment purposes.
[2] A prosecutor may not inquire about the specific nature of a prior felony conviction to impeach a witness before determining whether the conviction involved dishonesty or…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceRobert Tampling was convicted of grand theft. During cross-examination, the prosecutor questioned him about a prior conviction for jury tampering with…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Crimes Involving False Statement cases and more on FLexlaw
SHIVERS, Judge.
Robert Tampling and Kimberly Tampling were found guilty by a jury of grand theft. Robert Tampling was adjudged guilty and placed on probation. An order was entered withholding adjudication of Kimberly Tam-pling, and she was also placed on probation. We reverse Robert Tampling’s conviction and remand for a new trial. We also remand the order withholding adjudication of Kimberly as to the impermissible delegation to the probation officer of the trial court’s duty to determine the amount of restitution; State concedes this point.
The following colloquy occurred during direct examination of Robert:
Q. Have you been convicted of a felony before? A. Yes, sir, I was. Q. How many times? A. One time. The following colloquy occurred during cross examination:
Q. Did the felony that you were convicted of involve truth or honesty? A. Sir? Q. It involves truth and dishonesty, doesn’t it? Defense counsel objected to the questioning as improper impeachment. The objection was overruled. Defense counsel then made the following statement for the record outside the presence of the jury: “The court overruled defense counsel’s objection to improper impeachment saying, alleging or ruling that jury tampering somehow has something to do with the truth and veracity.” The cross examination continued:
Q. Mr. Robert Tampling, on November 16, 1987, the United States District Court for the Northern District of Alabama ... DEFENSE COUNSEL: Objection, Your Honor. If he’s going to ask the question about dishonesty, ask it. You can’t go into these other particulars of the conviction. THE COURT: Ask the question. Let him answer it. ' Q. Were you not, in fact, convicted of the charge of influencing a jury? A. I think it was tampering with a jury. Q. Excuse me, tampering with a jury. A. I believe so, yes, sir. Q. Those are my questions. As a preliminary matter, the trial court did not abuse its discretion by ruling that tampering with a jury is a crime involving dishonesty. See Cook v. State, 581 So. 2d 141 (Fla.1991) (solicitation of perjury is admissible to impeach under section 90.-610(1); standard of review is abuse of discretion). According to State v. Page, 449 So. 2d 813 (Fla.1984), crimes involving stealth or cheating are admissible to impeach. “[Cjonvictions which would not be admissible under Page apparently include reckless driving, public intoxication and most crimes of violence.” Ehrhardt, Florida Evidence, § 610.4 (1992 Edition).
However, the trial court abused its discretion by allowing the prosecutor to inquire about the type of crime committed before Robert Tampling testified whether the crime involved dishonesty or a false statement. As Appellant argues, the proper procedure to impeach under section 90.-610(1) is found in Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991). This court explained,
the prosecutor is permitted to attack the defendant’s credibility by asking whether the defendant has ever been convicted of a felony or a crime involving dishonesty or false statement, and how many times. If the defendant admits the number of prior convictions, the prosecutor is not permitted to ask further questions regarding prior convictions, nor question the defendant as to the nature of the crimes. If, however, the defendant denies a conviction, the prosecutor can impeach him by introducing a certified record of the conviction. The prosecutor is not permitted to ask the defendant questions about prior convictions unless the prosecutor has knowledge that the defendant has been convicted of a crime and has evidence necessary for impeachment if the defendant fails to admit the number of convictions for such crimes. The proper method to impeach the witness who answers the question regarding his prior convictions incorrectly, is to offer a certified record of the witness’s prior convictions, which will necessarily reveal the nature of the crimes. It is improper for the prosecutor or questioning party to name the specific crimes or to state the nature of the crimes.
Id. at 489-90 (citations omitted). In the instant case the prosecutor never elicited a response to such a question as ‘Have you ever been convicted of a crime involving dishonesty or false statement?’ At one point Robert Tampling answered, “Sir?” to a similar question, but the next question posed to Mr. Tampling named the specific crime. Even if Robert Tampling denied the conviction, had the question been properly presented, it would have been error to ask Mr. Tampling about the specific conviction. “The nature of the offenses is admissible only by entering records of the convictions into evidence.” Williams v. State, 511 So. 2d 1017, 1019 (Fla. 2d DCA 1987); accord, Gavins, 587 So. 2d at 490. The prosecutor did not attempt to admit records of Robert Tampling’s conviction for jury tampering.
After an examination of the entire record, we “cannot say beyond a reasonable doubt that the error did not affect the verdict.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.1986). Accordingly, we reverse Robert Tampling’s conviction and remand for a new trial. We also remand the order withholding adjudication of Kimberly Tampling and placing her on probation for the trial court to determine the amount of restitution.
AFFIRMED in part, REVERSED in part and REMANDED.
BOOTH and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bobb v. State, 647 So. 2d 881 (Fla. 4th DCA 1994)…erpretation is to be contrasted with the more narrow definition used by the federal courts under the Federal Rules of Evidence, upon which our rule was modeled. Erhardt, Charles, Florida Evidence 610.3, at 422-23 (1993 ed.). . In Tampling v. State, 610 So. 2d 100, 101 (Fla. 1st DCA 1992), the first district held reversible error occurred where the prosecutor asked the defendant whether the felony to which the defendant admitted being convicted was for juiy tampering. In reaching this point the court held, as…
-
RAY v. State, 933 So. 2d 716 (Fla. 4th DCA 2006)…y the convictions or fail to admit the correct number of convictions. Holmes v. State, 757 So. 2d 620 (Fla. 3d DCA 2000); Livingston v. State, 682 So. 2d 591 (Fla. 2d DCA 1996); Hicks v. State, 666 So. 2d 1021 (Fla. 4th DCA 1996); Tampling v. State, 610 So. 2d 100 (Fla. 1st DCA 1992). The state argues that Ray opened the door by testifying that he did not think he was breaking the law by entering the garage without permission. The state asserts that Ray’s statement opened the door to further inquiry about th…
-
Mustapha Ahariache v. State, 882 So. 2d 523 (Fla. 3d DCA 2004)…or false statement.” Bobb, 647 So. 2d at 883. Nonetheless, the convictions and sentence for grand theft and criminal mischief under review are affirmed because we are convinced that any error which may have been involved, but see Tampling v. State, 610 So. 2d. 100 (Fla. 1st DCA 1992)(dicta that trial court correctly overruled defendant’s objection to prosecutor’s question of whether prior felony involved truth or dishonesty); Bobb (indicating that contrary practice- was “preferable”), was harmless beyond a re…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Page, 449 So. 2d 813 (Fla. 1984)
- Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)
- Williams v. State, 511 So. 2d 1017 (Fla. 2d DCA 1987)
- Cook v. State, 581 So. 2d 141 (Fla. 1991)