Hamilton v. State
Decision Date | 25 April 1972 |
Docket Number | No. 71--382,71--382 |
Citation | 261 So.2d 184 |
Parties | Odes Neal HAMILTON, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Charles Edelstein, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Arnold R. Ginsberg, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and CHARLES CARROLL and HENDRY, JJ.
The appellant, Odes Neal Hamilton, was indicted, tried upon his plea of not guilty and convicted of premeditated murder of one Robert Birden. The jury recommended mercy and the court sentenced the defendant to a life term in the State Penitentiary.
The appellant has presented these points, which we have summarized, for reversal, that the court erred in (1) permitting a witness to identify defendant at trial where the identification was coerced and based upon showing of 'mug shots' rather than a lineup at a time when defendant was in custody and had counsel; (2) commenting on the evidence; (3) failing to instruct on all lesser included offenses and degrees of homicide; (4) unduly restricting cross-examination; (5) denying him a fair trial, and (6) failing to grant motions for judgment of acquittal and for new trial based upon insufficient evidence.
We note that defendant's arguments concerning statements made by the trial judge after the selection of the jury and during defense counsel's opening statement warrant discussion. Defense counsel in his opening statement argued to a jury that a Raymond Augusta Black, who had been named as a co-defendant of Hamilton in the indictment for first degree murder
'. . . entered a plea of guilty . . . to the charge of manslaughter (; Black) promised the State that he would testify for them in this case in return for the State's promise that they would recommend to the Court that he, Black, would be sentenced to five years . . . or four years or three years or two years or even just time served.' (Bracketed material added.)
At this point the prosecutor said:
Defense counsel resumed by requesting that record be brought in of the proceedings of the plea to show what was promised to that key State's witness. The court said: Defense counsel objected to the court testifying in the case, and the court responded:
(Bracketed words added.)
Defense counsel continued briefly with his opening statement, and the prosecutor objected. During the interchange concerning that objection, the court stated the grounds for sustaining the state's objection:
'You can have him (Black) on the stand and cross-examine him on the stand at your leisure--at great leisure.' (Bracketed words added.)
Defense counsel again continued to give his opening statement and the court sustained an objection by the state that defense counsel was giving a summation, the court concluding:
'I would appreciate it if you limit your statements to an opening statement from your witnesses and what the evidence will show.'
At that point defense counsel objected and moved for a mistrial on the grounds that: (1) the court had misled the jury into believing that the defendant had some burden of producing evidence or witnesses, and (2) this statement by the court constituted a comment on the defendant's testifying or not. The court heard argument on the motion for mistrial at the bench out of the hearing of the...
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Quintana v. State
...in which they were made any error may simply be harmless. See Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968); Hamilton v. State, 261 So.2d 184 (Fla. 3d DCA 1972). At any event the basis of the court's comments was due to its belief that such evidence was irrelevant. Since we have that ......
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Tate v. Gray, 73--398
...and was not a matter for the court to determine. We think that this instruction was sufficient to cure any prejudice. Hamilton v. State, Fla.App.3d 1972, 261 So.2d 184. Appellants next contend that the trial court denied them the opportunity to take a voluntary dismissal as provided for by ......
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Hester v. State, 87-1353
...Before HUBBART, FERGUSON and GERSTEN, JJ. PER CURIAM. Affirmed. Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986); Hamilton v. State, 261 So.2d 184 (Fla. 3d DCA 1972); Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967); § 90.402, Fla.Stat. ...