ODESSA KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1973-08-29
No. 73-173
OWEN, C. J., and CROSS and MA-GER, JJ., concur.
281 So. 2d 594 Florida District Court of Appeal, Fourth District (1973) Positive Treatment
Cited by 2 cases

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.

Synopsis

Odessa Kelly was convicted of culpable negligence and shooting within an occupied dwelling after shooting her paramour. The appellate court reversed and remanded for a new trial because the trial judge made impermissible comments in the jury's presence about the defendant's credibility based on her prior criminal convictions.


Holding

The trial court's comment that a person convicted of a crime is not presumed to be entitled to the same weight of testimony as one who is not was an impermissible comment on the defendant's credibility as a witness and deprived her of a fair trial, requiring reversal and remand for a new trial.


Headnotes

[1] A trial court's comment in the jury's presence regarding a defendant's prior convictions, suggesting their testimony is not entitled to the same weight as other witnesses…

[2] Evidence of a witness's prior criminal convictions may be used to impeach credibility, but it is only one factor for the trier of fact to consider and does not create a p…

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Key Quotes

“The only inference reasonably to be drawn from the trial judge's comment (quoted above) made in the jury's presence, is that appellant's testimony was not entitled to the same weight and credibility as that of the other witnesses. As such, it was an impermissible comment by the court on appellant's credibility as a witness and deprived her of a fair trial.”

States the core holding that the trial judge's comments on credibility were impermissible and violated the defendant's right to a fair trial.

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Facts & Procedural History

The defendant shot Joe McCoy with a pistol as he was packing to leave their jointly occupied apartment. McCoy testified he was drunk and did not remem…

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Opinion of the Court
OWEN, Chief Judge.

OWEN, Chief Judge.

Appellant shot her paramour with a pistol as he was packing to leave their jointly occupied apartment. She was convicted of culpable negligence (F.S. Section 784.05, F.S.A.), and shooting within an occupied dwelling (F.S. Section 790.19, F.S.A.), and appeals her judgment and sentence.

The State’s case was weak, and in essence consisted primarily of the testimony of the victim, Joe McCoy. In substance he *595stated that he was drunk, and did not remember what happened other than he was simply standing in the apartment preparatory to leaving when appellant shot him without saying a word. McCoy ran from the apartment and some neighbors took him to the hospital for treatment. The neighbors testified that appellant came out of the apartment with the pistol in her hand and made a statement to the effect that she ought to kill him (McCoy). Appellant took the stand in her own behalf and testified in substance that McCoy was drunk, had been physically abusing her earlier in the day, and that she had the pistol in her hand when he pushed her aside, causing the pistol to discharge. She denied any intention to shoot the gun or to harm McCoy. On direct examination she admitted that she had been convicted of crimes three or four or more times.

During the prosecutor’s closing argument he commented upon the defendant’s having been convicted of a crime four times, to which comment defense counsel interposed an objection. In the jury’s presence a colloquy occurred between the court and counsel during which counsel made inquiry as to the relevancy of the argument and the court responded as follows :

“THE COURT: I’ll be glad to explain it to you. The law permits it to be received in evidence, and the reason you brought it out, because it tended to impeach a witness. A person ivho has been convicted of a crime is not presumed to be entitled to the same weight of their testimony as one who’s not. That’s law. . . ."

The only inference reasonably to be drawn from the trial judge’s comment (quoted above) made in the jury’s presence, is that appellant’s testimony was not entitled to the same weight and credibility as that of the other witnesses. As such, it was an impermissible comment by the court on appellant’s credibility as a witness and deprived her of a fair trial. Hamilton v. State, Fla.App.1959, 109 So.2d 422; Kellum v. State, Fla.App.1958, 104 So.2d 99.

While it is true that a witness’s credibility may be impeached by showing prior conviction of a crime (F.S. Section 90.08, F.S.A.), such evidence is merely a factor to be considered by the trier of fact in determining the credibility of the witness and does not carry with it any presumption that the witness is, for that reason alone, any less credible.

As we have noted, the State’s case against appellant was weak and essentially depended upon the jury believing McCoy’s version of what transpired, rather than appellant’s. The court’s comment concerning appellant’s credibility was necessarily prejudicial. The interest of justice would best be served by reversing the judgment and remanding the cause for a new trial. It is so ordered.

Reversed and remanded.

OWEN, C. J., and CROSS and MA-GER, JJ., concur.


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Citator

Cited By

  • Murray v. State, 328 So. 2d 501 (Fla. 4th DCA 1976)
    …igence, a misdemeanor, contemplates personal injury not resulting in death.2 Thus, the only distinguishing feature between the two statutorily defined offenses, besides punishment, is whether or not the victim died. See, for example, Kelly v. State, 281 So. 2d 594 (Fla.App. 4th 1973); Mills v. Cone Brothers Contracting Company, 265 So. 2d 739 (Fla.App. 2d 1972). In the instant case the act giving rise to appellant’s conviction for culpable negligence resulted in death. In light of the foregoing it is apparen…

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