TIMOTHY KYLE, A/K/A CECIL GERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Kyle was convicted of strong-arm robbery and resisting arrest without violence. The Florida Fourth District Court of Appeal reversed his convictions because the prosecutor improperly elicited testimony about his prior guilty plea to battery on a law enforcement officer, and because the trial court erroneously instructed the jury on the lawfulness of the arrest in a case-specific manner.
The court reversed the convictions because the prosecutor improperly named the crime and referenced incarceration in violation of established precedent, and because the jury instruction on the validity of the arrest in case-specific language improperly removed the issue of arrest validity from jury consideration.
[1] When a defendant testifies in his own behalf, he may be asked if he has ever been convicted of a crime, and if he admits such conviction, he may be asked how many times h…
[2] If a defendant denies a prior conviction, the opposing party may produce the record of conviction, but the inquiry must stop at that point and may not be pursued to the p…
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Join FLexlaw to unlock all legal intelligence“The law is well settled that when a defendant testifies in his own behalf he may be asked if he has ever been convicted of a crime [citation omitted]. If he admits such conviction, he may be asked how many times he has been convicted. If he denies the conviction, the opposing party may produce the record of the conviction. In either event, the inquiry must stop at that point. The matter may not be pursued to the point of naming the crime.”
Establishes the established rule limiting cross-examination about prior convictions and prohibiting the naming of the specific crime.
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Join FLexlaw to unlock all legal intelligenceOfficers called to the scene of a crime observed appellant, who then ran but was eventually apprehended. When cross-examined about his flight, appella…
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KLEIN, Judge.
We reverse appellant’s convictions for strong-arm robbery and resisting arrest without violence because the prosecutor brought out that he had previously pled guilty to battery on a law enforcement officer. After being observed by officers who had been called to the scene of the crime, appellant first ran, but was eventually apprehended. When questioned about his flight on cross-examination, appellant said that he had “been jumped on by the police before.” The prosecutor then asked him whether he had a felony conviction for battery on a law enforcement officer as a result of a guilty plea. The prosecutor followed this with “you did time for that right?”.
In Herman v. State, 341 So. 2d 1010, 1011 (Fla. 4th DCA 1977), we said:
The law is well settled that when a defendant testifies in his own behalf he may be asked if he has ever been convicted of a crime [citation omitted]. If he admits such conviction, he may be asked how many times he has been convicted. If he denies the conviction, the opposing party may produce the record of the conviction. In either event, the inquiry must stop at that point. The matter may not be pursued to the point of naming the crime. Whitehead v. State, 279 So. 2d 99 (Fla. 2d DCA 1973); Morton v. State, 205 So. 2d 662 (Fla. 2d DCA 1968); Mead v. State, 86 So. 2d 773 (Fla.1956). (Emphasis added). See also Bobb v. State, 647 So. 2d 881 (Fla. 4th DCA 1994).
In the present ease, the trial court permitted the prosecutor’s inquiry because he concluded that appellant had opened the door to it. We cannot agree. While appellant’s statement that he had been “jumped on by police before” may have opened the door slightly, it could not possibly have opened it wide enough to allow in the state’s naming the crime and pointing out that appellant had been incarcerated for it, nor does the state cite any authority for such a proposition.
The court also erred in giving the following jury instruction on the charge of resisting arrest:
Officer Robert Bart is a law enforcement officer within the meaning of the law. And the Court further instructs you that the arrest and detention of Cecil German constitutes the lawful execution of a legal duty.
While it is not an error for a trial court to instruct a jury that “an arrest and detention constitutes the lawful execution of a legal duty,” it is error to give the instruction in a case-specific manner, as it was given here, because the instruction in effect takes from the jury the issue of the validity of the arrest. State v. Anderson, 639 So. 2d 609 (Fla.1994) (approving Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990), and disapproving Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992)). Although appellant did not object to the instruction, and an objection is necessary to preserve the error, Anderson, we mention it here so that the instruction will not be given again on retrial.
Reversed.
HERSEY and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stallworth v. State, 53 So. 3d 1163 (Fla. 1st DCA 2011)…permitting the prosecutor to question [him] about his prior convictions. Rather, the prosecutor should have impeached [the witness] by entering into the record certified copies of his prior convictions.”) (citations omitted). Accord, Kyle v. State, 650 So. 2d 127, 127-28 (Fla. 4th DCA 1995). The remaining question for our consideration is whether the trial court’s error was harmless. Appellant argues it was not harmless because the verdict depended on the credibility of the police officer and the defense wi…
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Dwann Green v. State, 720 So. 2d 1150 (Fla. 4th DCA 1998)…; Payne v. State, 426 So. 2d 1296 (Fla. 2d DCA 1983). Even had Green not admitted that he had two prior convictions, the only proper method of im [*1151] peachment would have been to introduce certified records of the convictions. See Kyle v. State, 650 So. 2d 127 (Fla. 4th DCA 1995); Peterson v. State, 645 So. 2d 10, 12 (Fla. 4th DCA 1994). Under the facts of this case, we find this error to be prejudicial. See § 924.051(4), Fla. Stat. (1997). As to the other points raised on appeal, we find no error. RE…
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Perry v. State, 861 So. 2d 462 (Fla. 1st DCA 2003)…case that “the arrest and/or a detention of the defendant constitutes a lawful execution of a legal duty” that issue was impermissibly taken from the jury. Id. at 914-915 (citations omitted; emphasis in original). [*465] Similarly in Kyle v. State, 650 So. 2d 127 (Fla. 4th DCA 1995), the trial court gave the following instruction on a resisting arrest charge: “And the court further instructs you that the arrest and detention of Cecil German [a/k/a Timothy Kyle] constitutes the lawful execution of a legal dut…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blackman v. State, 279 So. 2d 99 (Fla. 3d DCA 1973)
- Mead v. State, 86 So. 2d 773 (Fla. 1956)
- Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990)
- State v. Anderson, 639 So. 2d 609 (Fla. 1994)
- Bobb v. State, 647 So. 2d 881 (Fla. 4th DCA 1994)
- Aubrey v. Morton, 205 So. 2d 662 (Fla. 2d DCA 1968)
- Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992)
- Herman v. State, 341 So. 2d 1010 (Fla. 4th DCA 1977)