ERIC CULLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's conviction for robbery with a deadly weapon was reversed because the trial court erred in limiting impeachment of a key witness who had opened the door to prior conviction evidence by falsely claiming he had never been in trouble.
A witness who volunteers that he has never been in trouble opens the door to impeachment by prior convictions that would otherwise be inadmissible under Florida Statute section 90.610.
[1] A witness who volunteers misleading testimony that he has never been in trouble opens the door to impeachment by prior convictions that would otherwise be inadmissible un…
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Join FLexlaw to unlock all legal intelligence“must first offer misleading testimony or make a specific factual assertion which the [opposing party] has the right to correct so that the jury will not be misled”
Standard for opening the door to otherwise inadmissible evidence, citing Robertson v. State
Appellant was convicted of robbery with a deadly weapon. A witness who participated in the crime and entered a plea testified against the defendant, v…
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KLEIN, J.
Appellant was convicted of robbery with a deadly weapon; however, the trial court erred in limiting his impeachment of a witness, and we reverse for a new trial.
The witness, who had participated in the crime and entered a plea, testified against the defendant. The subject of the impeachment was that, when the witness was eighteen, he had been convicted of having sex with a sixteen year old, in another state, where it was a misdemean-or. Defendant recognizes that section 90.610, Florida Statutes (2004), which allows impeachment by prior felony convictions or convictions of other crimes involving dishonesty, would not apply. He argues, however, that the witness opened the door by volunteering, on more than one occasion, that before this crime he had never been in trouble. In order to open the door to this type of evidence, the witness “must first offer misleading testimony or make a specific factual assertion which the [opposing party] has the right to correct so that the jury will not be misled.” Robertson v. State, 829 So. 2d 901, 913 (Fla.2002).
We agree with the defendant that this witness, by volunteering that he had never been in trouble before, did open the door to this conviction, which would not have otherwise been admissible. Mosley v. State, 739 So. 2d 672, 677 (Fla. 4th DCA 1999) (citing a number of cases in which a witness was impeached after minimizing his criminal past). We cannot agree with the state that the error was harmless, because the testimony of this witness was critical. Reversed.
STONE and SHAHOOD, JJ., concur.
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Siegel v. State, 68 So. 3d 281 (Fla. 4th DCA 2011)…nal quotations and citation omitted). In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled. Cullen v. State, 920 So. 2d 1155, 1156 (Fla. 4th DCA 2006). The mere fact that testimony may be characterized as incomplete or misleading, however, does not automatically trigger the admission of otherwise inadmissible evidence under the “opening the door” rule. Redd v. State, 49…
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Lenz v. State, 183 So. 3d 1239 (Fla. 4th DCA 2016)…the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled.” Siegel v. State, 68 So. 3d 281, 288 (Fla. 4th DCA 2011) (citing Cullen v. State, 920 So. 2d 1155, 1156 (Fla. 4th DCA 2006)). It was the State’s questions of Appellant during cross examination — not anything Appellant said during his testimony on direct — which broached the subject of the victim’s credibility. Thus, the trial court erred in find…
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Authorities Cited
- Swett v. State, 829 So. 2d 901 (Fla. 2002)
- Robertson v. State, 829 So. 2d 901 (Fla. 2002)
- Mosley v. State, 739 So. 2d 672 (Fla. 4th DCA 1999)