DAMION L. BURST, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Damion Burst appeals his conviction for armed robbery and a probation violation order. The court affirms the denial of his mistrial motion, finding that Burst opened the door to the prosecutor's impeachment evidence by testifying about the nature of his prior convictions, and remands the probation violation determination for entry of a written order.
The trial court did not abuse its discretion in denying the mistrial motion because Burst opened the door to the prosecutor's impeachment evidence by eliciting testimony about the nature of his prior convictions. The probation violation determination must be remanded because the trial court failed to enter a written order specifying which conditions of probation were violated.
[1] A defendant opens the door to otherwise inadmissible evidence by testifying about the nature of prior convictions, allowing the prosecution to inquire into details.
[2] Prosecutor's remarks in closing argument attacking a defendant's credibility by highlighting the nature of prior convictions are proper when the defendant's credibility i…
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 intelligence“Defense counsel thus opened the door to otherwise inadmissible evidence.”
Establishes the open door doctrine that permitted the prosecutor to inquire into details of prior convictions after defense counsel elicited testimony about their nature.
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Join FLexlaw to unlock all legal intelligenceFollowing an armed robbery at the Frontier Bar, police issued a BOLO based on the victim's description. Officers encountered two individuals matching …
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RAMIREZ, J.
Damion L. Burst appeals his conviction for armed robbery and an oral order violating his probation. We affirm the denial of his motion for a mistrial because the trial court did not abuse its discretion where Burst opened the door to the prosecution’s argument.
Following an armed robbery at the Frontier Bar, the victim gave a description of his assailants to police and a BOLO was issued. Two blocks away, an officer encountered two individuals who fit the BOLO description. The individuals ran into an empty lot when they saw the officer. A few minutes later, and a block away, another officer encountered Burst out of breath. The victim identified Burst as the gunman.
At his trial, Burst testified that he ran from the first officer because he was in possession of a “bag of weed” in violation of his probation. He did not run from the second officer because he had gotten rid of the “weed.”
Burst also testified as to his prior felony convictions as an affirmation that he was telling the truth about the robbery.
Defense counsel: Did you rob LeFrance Frazier? Burst: No, I didn’t. Defense counsel: Is that true? Burst: Yes, that is the truth. Defense counsel: Have you ever been convicted of a crime? Burst: Yes. Defense counsel: How many times? Burst: Four times. Defense counsel: What was that for? Burst: Two counts of possession of cocaine and two grand thefts. Defense counsel’s question as to prior convictions “of a crime” was broader than allowed under section 90.610(1), Florida Statutes (2000), which only permits impeachment through felony convictions or misdemeanors involving dishonesty or a false statement. See Brown v. State, 787 So. 2d 136, 139 (Fla. 4th DCA 2001). This was further compounded by eliciting testimony regarding the nature of the convictions, which would have been improper cross-examination. See Cummings v. State, 412 So. 2d 436, 438 (Fla. 4th DCA 1982). Defense counsel thus opened the door to otherwise inadmissible evidence.
During cross-examination, Burst clarified that those were not all the crimes for which he had been convicted, but that those were all the felonies. The prosecutor elicited Burst’s testimony that one of the possession convictions was for possession with intent to sell, and one of the grand theft convictions was for grand theft auto.
During closing arguments, the defense counsel attacked the reliability of the victim’s identification. The prosecutor then attacked Burst’s credibility by highlighting his conviction for grand theft auto as not being “just that he stole something from Burdines ... [that he] just stuffed a bunch of stuff in a bag,- no. He went up to somebody’s car and he broke in and he stole it.” Burst argues that he should have been granted a mistrial because the prosecutor’s remarks introduced facts not in evidence and that the remarks were aimed at demonstrating Burst’s propensity to commit the crime. We disagree.
Burst opened the door when he testified as to the nature of his prior convictions, thus allowing the prosecutor to inquire as to the details. See Mosley v. State, 739 So. 2d 672, 676 (Fla. 4th DCA 1999). When viewed in context, the prosecutor’s remarks about grand theft auto being different than shoplifting at Bur-dines were aimed at attacking Burst’s credibility and were not meant to show a propensity to commit crimes. Attacks upon the defendant’s credibility are entirely proper. See Wilkins v. State, 383 So. 2d 742 (Fla. 4th DCA 1980). See also State v. Murray, 443 So. 2d 965, 957 (Fla.1984) (the credibility of the defendant as a witness was subject to attack in closing argument where he took the stand to deny culpability and prosecutor’s comments, although pungent, were harmless error). Although the prosecutor’s remarks may have gone too far in arguing that Burst broke into a car, this isolated reference did not vitiate the entire trial so as to require a mistrial.
However, we do agree, and the State properly concedes, that the violation of probation determination must be remanded so that the trial court may enter a written order specifying which conditions of probation were violated. See Widmer v. State, 697 So. 2d 545 (Fla. 1st DCA 1997); Greer v. State, 831 So. 2d 1261(Fla. 2d DCA 2002).
Affirmed in part, remanded so that written order violating probation may be entered.
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T.M. v. State, 233 So. 3d 1275 (Fla. 3d DCA 2017)…sposition orders, so we remand to the trial court for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated”); M.A.L. v. State, 110 So. 3d 493 (Fla. 4th DCA 2013). See also Burst v. State, 836 So. 2d 1107 (Fla. 3d DCA 2003); Robinson v. State, 74 So. 3d 570 (Fla. 4th DCA 2011). The State contends this appeal is moot because the trial court did in fact enter a written order following T.M.’s probation violation hearing. However, the written order-ref…
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Bowers v. State, 929 So. 2d 1199 (Fla. 2d DCA 2006)…§ 90.610, Fla. Stat. (2000). However, absent trial counsel’s direct examination, that disclosure would have been limited to the number of felony convictions or convictions for misdemeanors involving dishonesty or false statement. See Burst v. State, 836 So. 2d 1107, 1108 (Fla. 3d DCA 2003). In fact, it is accepted strategy for defense counsel to elicit this limited information from a defendant on direct examination in an attempt to “steal the thunder of the impeachment” away from the State by preventing it fro…
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Hayward v. State, 59 So. 3d 303 (Fla. 2d DCA 2011)…nviction because defendant’s testimony, without clarification through questions by the State, “could have deluded the jury into equating appellant’s conviction of assault with intent to commit murder with his previous misdemeanors”); Burst v. State, 836 So. 2d 1107, 1109 (Fla. 3d DCA 2003) (holding that defendant opened the door to cross-examination about the nature of two prior convictions when he volunteered, during questioning by-his own counsel, that he had two prior convictions for possession and two prio…
Authorities Cited
- Mosley v. State, 739 So. 2d 672 (Fla. 4th DCA 1999)
- Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982)
- Cochran v. Cochran, 412 So. 2d 436 (Fla. 4th DCA 1982)
- Widmer v. State, 697 So. 2d 545 (Fla. 1st DCA 1997)
- Brown v. State, 787 So. 2d 136 (Fla. 4th DCA 2001)
- Wilkins v. State, 383 So. 2d 742 (Fla. 4th DCA 1980)
- Greer v. State, 831 So. 2d 1261 (Fla. 2d DCA 2002)