#### Robert WARREN, Appellant, v. STATE of Florida, Appellee.

No. 41076.

Supreme Court of Florida.

July 28, 1972.

Robert E. Jagger, Public Defender, and Frank H. White and Jerome C. Latimer, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

PER CURIAM.

This cause is before us on direct appeal from the judgment of conviction of the Circuit Court, Pinellas County, imposing the death penalty for rape based on a jury verdict of guilty without recommendation of mercy. Appellant raises five points on appeal. One of these is a general challenge to the evidence which is without merit; another is the challenge of the *9death sentence as now legislated, and on this the United States Supreme Court has just ruled favorably to appellant in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and companion cases.

We proceed, however, to a consideration of the remaining points on appeal which relate to allegedly improper questioning by the prosecutor. One instance was in the questioning of defendant when he took the stand (and subsequent comments on summation) ; another was related interrogation of an alibi witness. Appellant urges that this constituted reversible error. We do not think so.

First, the prosecution cross-examined defendant regarding prior convictions as follows :

> “Q. Have you ever been convicted of a felony ?

> “A. No.

> “Q. Pardon me ?

> “A. No.

> “Q. You served some time up here on a felony—

> “A. No.

> “Q. 1969, January 8—

> “A. No.

> “Q. Auto theft and another charge—”

At that point the discussion between the Court and counsel indicates that the State was relying on an FBI “rap sheet” but apparently was not prepared to refute the defendant’s denial with a proper record of a prior conviction. The Court instructed the jury to disregard the question as to whether or not defendant had been convicted of a felony.

The Court’s prompt instruction that the jury disregard the question and the fact that the last impression came from the defendant that he had not been convicted, would render any prejudice in this respect harmless error. The jury in a criminal case is repeatedly and emphatically instructed on the “beyond a reasonable doubt” requirement and it would be a strained inference that a jury would have convicted and failed to recommend mercy, as it did, by virtue of this inconclusive inquiry.

Additional testimony challenged as prejudicial was that of Daisy Marjorie Hewitt who was called as a witness for the defendant. On direct examination she testified that the defendant could not have committed the offense charged since, during the material times, the defendant was with her and her husband. During cross-examination by the State, testimony was elicited that the defendant, Robert Warren, lived at her home on his return from Okeechobee, a boy’s reform school.

It was the witness’ answer which first brought out “he was in a boys’ school” and the questioning which followed was not an unnatural clarifying inquiry, but was approaching the restricted area when the objection interrupted. The judge promptly sustained the objection, granted defendant’s motion to strike the objectionable testimony and instructed the jury to disregard it. It was not further pursued and we do not feel that it was prejudicial error in the total circumstances. It was a fact that the testimony of his own witness, called to establish an alibi, placed him in Okeechobee and the fact could not be completely ignored. The able trial judge held a tight rein in order to avoid the prejudicial error claimed and we feel that he was successful in his effort. We cannot assume that “a boys’ school in Okeechobee” is immediately known by jurors to be “a reform school”. This relationship was nowhere expressly pointed out.

The last error claimed regarding the prosecution’s comment on summation as to the failure to produce Daisy Hewitt’s husband to substantiate defendant’s alibi *10was not preserved for appeal by timely objection and therefore could not constitute reversible error. The overall tone of the summation, taken with the response to it, meets the required standard, in any event.

In light of the recent decision in Furman v. Georgia, *supra,*and our related case of Donaldson v. Sack, 265 So.2d 499 (Fla.1972), we make no decision on the death sentence in this matter pending a further order of this Court.1 In all other respects the judgment of conviction is

Affirmed.

It is so ordered.

ROBERTS, C. J., and CARLTON, ADKINS and DEKLE, JJ., concur.

BOYD, J., dissents with opinion.

ERVIN and McCAIN, JJ., dissent and concur with BOYD, J.

1

. See our opinions, filed subsequent to the present case, in Anderson, et al. v. State, 267 So.2d 8 (Fla.1972), and In Re Baker, 267 So.2d 331 (Fla.1972).

BOYD, Judge

(dissenting):

I must dissent. The prosecutor’s questioning of defendant concerning prior crimes was improper and constituted grounds for a mistrial. The prosecution’s cross-examination of defendant regarding prior convictions proceeded as follows :

> “Q. Have you ever been convicted of a felony ?

> “A. No.

> “Q. Pardon me?

> “A. No.

> “Q. You served some time up here on a felony—

> “A. No.

> “Q. 1969, January 8—

> “A. No.

> “Q. Auto theft and another charge — ” At that point the discussion between the Court and counsel indicates that the State was relying on an FBI rap sheet but apparently was not prepared to refute the defendant’s denial with a proper record of a prior conviction. The Court instructed the jury to disregard the question as to whether or not defendant had been convicted of a felony.

The proper procedure for proving prior convictions is well established. Florida Statutes § 90.08, F.S.A., provides :

> “No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime . ; provided, however, evidence of such conviction may be given to affect the credibility of the said witness, and that such conviction may be proved by questioning the proposed witness, or, if he deny it, by producing a record of his conviction. * * * ”

In McArthur v. Cook2 this Court stated:

> “[T]he proper procedural approach is simply to ask the witness the straightforward question as to whether he had ever been convicted of a crime. *The inquiry must end at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction.*If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted. If the witness so desires he may of his own volition state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications; for example, the fact that he had in the meantime been fully pardoned or that the crime was a minor one *11and occurred many years before.” (e. s.)

I cannot agree with the appellee that the prosecutor’s failure to “rigidly” follow proper procedure was not prejudicial because the “last word put before the jury came from the lips of the defendant himself and it was that he had not been so convicted.” The State’s Attorney, even without legally admissible proof of conviction, spoke from a position of presumed knowledge of such matters and with greater authority than the accused. His cross-examination of the defendant might well have raised serious questions in the minds of the jurors as to defendant’s criminal propensity as well as his veracity.

The second meritorious point on appeal involves testimony of Daisy Marjorie Hewitt, who became a witness on behalf of the defense. During direct examination this witness testified that the defendant could not have committed the offense charged, since, during the material times the defendant was with her and her husband. During cross-examination by the State, testimony was elicited that the defendant, Robert Warren, lived with her on his return from Okeechobee. Immediately, counsel for defendant objected to such line of questioning on the grounds that such inquiry was highly prejudicial, not within the scope of direct examination, irrelevant, immaterial, sought to introduce collateral matters and was an attempt by the prosecution to do by indirection what could not be done by questioning defendant as to prior convictions for crime. Argument was had upon defendant’s objection in a conference at the bench. In the course of this argument the State Attorney indicated that it was their intention to ask Hewitt what Okeechobee was (a boys’ reform school) and what defendant was doing there. The trial court ruled on the objection in part as follows:

> “What I want to keep out is questions sounding like you are trying to find out what Okeechobee is, and it is my understanding Okeechobee is a boys’ reform school.

> « * * *

> “ * * * I have no objection to your showing the date she knew he was there or not there, but I do not think it is material, and I think we run into some prejudicial error if you bring out what Okeechobee is.”

Despite the foregoing ruling of the trial court, the prosecution continued to question the witness, Daisy Hewitt, regarding defendant’s stay in Okeechobee at a time, early in 1970, not material to the offense, allegedly committed July 1970, for which he was on trial. The questioning of Daisy Hewitt by the State proceeded as follows:

> “Q. How did you find out he went to Okeechobee ?

> “A. Because he would write us from Okeechobee.

> “Q. He would write you from the city of Okeechobee?

> “A. I know in a letter he was in a boys’ school.

> “Q. A boys’school ?

> “A. Yes. That is all I knew in Okeechobee.

> “Q. Like a college or something?

> “A. No.

> “MR. HARRISON: Your Honor, I object.

> “THE COURT: Approach the bench.”

I agree with appellant that the foregoing constitutes error compounding the other error committed in the cross-examination of the defendant regarding prior convictions. If the prosecution is not prepared to establish a defendant’s prior convictions by legally acceptable means, it will not be permitted to resort to other methods, thereby circumventing the required procedure.

It is no excuse that, as suggested by ap-pellee in its brief, the witness “volun*12teered” the fact that Okeechobee was a boys’ school. Even the mention of Okeechobee, well-known by residents of South Florida as the location of a boys’ reform school, was probably prejudicial under the facts of this case. In addition, persistent, overzealous counsel for the prosecution repeated the prohibited information, ruled inadmissible by the trial court, and continued to question the witness regarding the nature of the place where defendant had been at a time prior to the date of the offense for which he was on trial.

The foregoing errors were sufficient to have prejudiced the jury, and in my opinion, require the grant of a new trial.

2

. 99 So.2d 565, 567 (1957).