Evans v. State
| Decision Date | 12 October 1965 |
| Docket Number | No. 65-216,65-216 |
| Citation | 178 So.2d 892 |
| Parties | Merlin EVANS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Koeppel, Public Defender and Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.
Before HENDRY, C. J., and BARKDULL and SWANN, JJ.
This is an appeal by the defendant of a conviction of assault with intent to commit robbery.
The sole point on appeal is whether the trial judge erred in denying defendant's motion for mistrial. The motion was made as a result of a comment made by the prosecuting attorney in the presence of the jury during cross examination of one of the investigating officers. Defense counsel had asked the officer why he could not find a certain alibi witness when in fact defense counsel had found her. Whereupon the prosecuting attorney remarked, 'We were wondering about that point too.' Defense counsel objected to the prosecutor's remark and moved for a mistrial on the grounds that it was prejudicial and in violation of the defendant's constitutional rights. The court denied the motion and instructed the jury to disregard the comment of the prosecutor.
It is appellant's contention that the remark of the prosecutor clearly implied that defense counsel had deliberately fabricated an alibi defense, and that the remark constituted such fundamental and prejudicial error that the trial judge's cautionary instruction could not cure the error and a mistrial should have been granted. We find no basis for a mistrial and affirm.
The record discloses that prior to the remark complained of defendant's counsel attempted to discredit the arresting officers as to their efforts to locate the alibi witness.
Where the defendant's counsel has asked a highly improper question and the prosecutor replies, defendant's claim of foul will not usually entitle him to a mistrial. In Henderson v. State, 1 the Supreme Court said:
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Ricks v. State, 70--349
...we do not so find), they were fair comment and reply to the defense's argument. Whitney v. State, Fla.1961, 132 So.2d 599; Evans v. State, Fla.App.1965, 178 So.2d 892; Sadler v. State, Fla.App.1969, 222 So.2d 797. The other comments objected to when made were the subject of an objection by ......
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Baisden v. State
...improper questions and the prosecutor replies, defendant's claim of foul will not usually entitle him to a mistrial. See Evans v. State, Fla.App.1965,178 So.2d 892. It stands to reason then, where the defense counsel repeatedly disregards the court's instruction, then his claim of foul when......
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Braswell v. State, 68-756
...v. State, 74 Fla. 269, 76 So. 777; Cornelius v. State, Fla.1950, 49 So.2d 332; Nelson v. State, Fla.1957, 97 So.2d 250; Evans v. State, Fla.App.1965, 178 So.2d 892; Wright v. State, Fla.App.1968, 207 So.2d 519; Dames v. State, Fla.App.1969, 222 So.2d ...
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Schwarck v. State, 89-1730
...in making arguments to the jury particularly in retaliation to prior improper comments made by opposing counsel. Evans v. State, 178 So.2d 892 (Fla. 3d DCA 1965); Pitts v. State, 307 So.2d 473 (Fla. 1st DCA), cert. dismissed, 423 U.S. 918, 96 S.Ct. 302, 46 L.Ed.2d 273 Affirmed. ...