Green v. State
| Decision Date | 07 November 1969 |
| Docket Number | No. 69-125,69-125 |
| Citation | 228 So.2d 397 |
| Parties | Willie Chester GREEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Michael N. Kavouklis, Asst. Atty. Gen., Lakeland, for appellee.
Appellant, Willie Chester Green, was charged with assault with intent to commit murder. He was tried by a jury and found guilty of the crime as charged. Appellant had been previously tried for the crime of murder in the first degree of One Clarence Saunders and found guilty of manslaughter. Both crimes were committed on November 4, 1967, within the span of a few hours and within the same area.
During the second trial, the prosecution put on evidence from the trial in the first degree murder case of Clarence Saunders. Appellant here charges among other things that the trial court erred in allowing evidence of the previous crime to be introduced in the trial for assault with intent to commit murder; that the court erred in allowing prosecution to ask leading questions of its own witness, the prosecutrix, as to threats made by appellant; that the court erred in its failure to grant judgment of acquittal because prosecutrix failed to make an in-court identification of appellant.
We have studied the record and the briefs in this cause and find the only point that warrants discussion is whether the trial court erred in allowing the evidence of the previous crime to become a 'feature' instead of an 'incident' in the instant case.
Two of the witnesses gave detailed testimony as to the prior crime. The bullet used in the prior crime was introduced into evidence and testimony as to it and the gun, in an attempt to show that the gun was the same as in the crime being tried, comprised a major portion of the trial court record.
Assuming that the evidence of the previous crime was relevant as required by Williams v. State, Fla.1959, 110 So.2d 654, the question then arises whether the state was permitted to go too far in the introduction of testimony about the earlier crime causing the inquiry to transcend the bounds of relevancy to the charge being tried, and making the earlier offense a feature instead of an incident as prohibited by Williams v. State, Fla.1960, 117 So.2d 473.
The 1960 Williams decision held that if testimony as to the prior crime becomes a feature of the case being tried, then the prosecution of the case veers from a development of facts pertinent to the main issue of guilt or innocence to an assault on the character of the defendant which cannot be done unless he introduces his character into evidence.
The testimony as to the prior crime was not commensurate with that concerning the crime in the instant case in view of the fact that at the introduction of that evidence no limiting instruction was given. Since the record fails to show it, perhaps none was given for the jury to consider. In any event, a limiting instruction as to the use of that testimony should have been given when such evidence was introduced. See Roberson v. State, Fla.1898, 40 Fla. 509, 24 So. 474. In itself the mere volume of testimony concerning the prior crime would not necessarily make it a 'feature' in the second case. However, when considered with the additional fact that no limiting instruction was given, the prior crime could well have become a 'feature instead of an incident' of the instant case in the jury's mind. They could not be expected to know for what limited purpose the evidence of the prior crime was admitted.
For reasons stated above, we reverse and remand for a new trial.
McNULTY, J., concurs specially with opinion.
I agree that a reversal of the conviction herein...
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Snowden v. State
...mind. They could not be expected to know for what limited purpose the evidence of the prior crime was admitted." Green v. State, 228 So.2d 397, 399 (Fla. 2d DCA 1969). Thus, in Townsend v. State, 420 So.2d 615, 617 (Fla. 4th DCA 1982), the court stated that "the number of pages of testimony......
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Sias v. State, 80-1263
...(Fla. 2d DCA 1973), aff'd, State v. Davis, 290 So.2d 30 (Fla.1974); Reyes v. State, 253 So.2d 907 (Fla. 1st DCA 1971); Green v. State, 228 So.2d 397 (Fla. 2d DCA 1969). Concededly, the record in the present case reflects that more time was spent and evidence presented on the collateral crim......
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Marion v. State, 73--212
...of this case, fall within the 'fundamental error' doctrine. But see Davis v. State, Fla.App.1973, 276 So.2d 846; Green v. State, Fla.App.1969, 228 So.2d 397. Accordingly, the complained of evidence not having been objected to below or otherwise preserved, further review by an appellate cour......
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Travers v. State
...limiting instruction at the time such evidence is received, has been recognized as fundamental error requiring reversal. Green v. State, 228 So.2d 397 (Fla. 2d DCA 1969), cert. denied, 237 So.2d 540 (Fla.1970); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973), affirmed, State v. Davis, 290 ......