Freeman v. State, 88-465
| Decision Date | 08 February 1989 |
| Docket Number | No. 88-465,88-465 |
| Citation | 14 Fla. L. Weekly 421,538 So.2d 936 |
| Parties | 14 Fla. L. Weekly 421 Ernest FREEMAN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Douglas A. Wallace, Bradenton, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.
Freeman appeals from convictions for trafficking in cocaine, conspiracy to traffic in cocaine, possession of cocaine and possession of marijuana. Ten grounds are presented in support of reversing the convictions. We have considered each of them and find that three trial events sufficiently prejudiced Freeman's right to a fair trial to require reversal of the convictions.
During the trial a detective testified that when he questioned Freeman regarding the truthfulness of his answers to questions, Freeman stated: Freeman's attorney objected and unsuccessfully moved for a mistrial. The state concedes that the foregoing testimony is "fairly susceptible" of being viewed as an improper comment upon Freeman's right to remain silent. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The state contends, however, that the trial court's error was harmless because of the evidence demonstrating Freeman's guilt. The state misperceives the standard to be followed within the boundaries of DiGuilio in assessing harmless error. It has been settled by DiGuilio that prosecutorial comment upon a defendant's exercise of the right to silence is not automatic error, but is subject to the harmless error doctrine. 491 So.2d at 1137. Whether the error is harmless falls within the scope of appellate review. Id. We need not, however, undertake an extended analysis of this point. Our supreme court has left no doubt that the presence of "overwhelming evidence" is not the measure of harmless error, Long v. State, 494 So.2d 213 (Fla.1986), and the burden falls to the state to convince the reviewing court that the error is harmless. 491 So.2d at 1139. It is obvious in the face of Long that the state has failed to meet its burden.
Another detective recounted an unrecorded telephone conversation with Freeman. The detective testified during the state's case that in the conversation Freeman sought an increased price for the cocaine because of a prior stop he had experienced on the Interstate during which "they didn't catch him, or he wasn't caught." We agree with Freeman's claim that such testimony was "other crimes" evidence within the meaning of section 90.404(2), Florida Statutes (1987), and thus was subject to the requirements of section 90.404(2)(b)1. The trial court erred when it overruled Freeman's objection and motion for mistrial.
Finally, over the objection of Freeman's attorney, the trial court again denied a motion for mistrial and permitted a confidential informant to testify as follows:
Q. Mr. Allen, how do you feel about testifying in court as an informant?
A. I'm nervous.
Q. Are you frightened or intimidated by Mr. Freeman or Mr. Carter?
A. I haven't been intimidated.
Q. No. I say: Are you? Are you scared to testify in this kind of case?
A. Naturally, I'm concerned about any possibilities.
To continue reading
Request your trial
-
Love v. State, 90-1015
...doubt that the error did not contribute to the verdict. DiGuilio; Stone v. State, 548 So.2d 307 (Fla. 2d DCA 1989); Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989); see Ciccarelli v. State, 531 So.2d 129 (Fla.1988); State v. Lee, 531 So.2d 133 (Fla.1988). Accordingly, we reverse the conv......
-
Anderson v. State, 97-0944
...susceptible of being interpreted as a comment on silence. See, e.g., Smith v. State, 681 So.2d 894 (Fla. 4th DCA 1996); Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979). But, the "fairly susceptible" test is not a bright line test. Inste......
-
Stone v. State, 88-03431
...falling on the state to convince the reviewing court that the error is harmless beyond a reasonable doubt. DiGuilio; Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989); Abreu v. State, 511 So.2d 1111 (Fla. 2d DCA The parties offer divergent interpretations of the prosecutor's comment and it......
-
Senn v. State
...Bernier v. State, 547 So.2d 306 (Fla. 4th DCA 1989) (defendant and victim's testimony "differed materially"); Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989) (rejecting state's suggestion that error was harmless because of overwhelming evidence of Here, despite significant evidence of gu......