That’s A (W)rap: Florida Court Reverses Conviction Based Upon Impeachment Through Rap Sheet

Florida Rule of Evidence 90.610(1) provides that

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment….

But what proof of the witness’ prior convictions must the party possess for impeachment to be permissible? That was the question addressed by the recent opinion of the District Court of Appeal of Florida, Fourth District, in Barcomb v. State, 2011 WL 3903118 (Fla.App. 4 Dist. 2011).

In Barcomb, Kevin Barcomb was convicted of felony driving while license revoked. At trial,

On cross-examination the prosecutor asked Barcomb if he had ever been convicted of a felony. He responded that he was unsure whether he had ever been convicted of a felony. The prosecutor asked no other questions regarding a prior felony.

Barcomb’s prior felony conviction was for DUI, and the prosecutor merely obtained a NCIC, or rap sheet, which listed the conviction and did not notify defense counsel of his intent to use it for impeachment purposes until after trial had started. After Barcomb was convicted, he appealed, claiming that the prosecution failed to present sufficient evidence of his prior conviction to allow for impeachment.

The District Court of Appeal of Florida, Fourth District, agreed, finding that ordinarily a party must present a certified copy of the judgment of conviction to permit impeachment. Only if a party engages in a “good faith,” but unsuccessful, attempt to procure a certified copy can impeachment be accomplished through a rap sheet. The problem for the prosecution in Barcomb was that it made no such good faith effort:

[T]he prosecutor in this case obtained on the eve of trial only an NCIC sheet indicating a prior DUI conviction in New York. She did not notify defense counsel of her intent to use it until after the trial had started, and she did not have certified copies of the conviction or, as in Peterson, an affidavit from New York attesting to the accuracy of the report. Nor had the prosecutor attempted to secure a certified copy of the conviction, as in Miller. We agree with Peoples that we should not stray so far from the Cummings rationale so as to approve the questioning of the witness without more than an NCIC rap sheet to wave in front of a jury.

The court thus reversed Barcomb’s conviction.

-CM