Hines v. State, 82-168
| Decision Date | 28 December 1982 |
| Docket Number | No. 82-168,82-168 |
| Parties | Leonard HINES, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
Before BASKIN, FERGUSON and JORGENSON, JJ.
This appeal is taken from a judgment of conviction for robbery after which appellant was sentenced under the Youthful Offender Act. The contentions here are: (1) the court should have conducted an inquiry after appellant made a prima facie showing that the state was using its peremptory challenges to systematically exclude black jurors, (2) the prosecutor's comments in closing argument were highly improper and prejudicial, (3) the court's admonition to the state attorney in the presence of the jury was prejudicial, (4) by granting a state motion in limine the court deprived appellant of the benefit of exculpatory testimony from a credible witness.
We dispose of each point briefly in reverse order.
First, at trial appellant opposed the motion in limine on the grounds that the statement was admissible as a res gestae exception to the hearsay rule. The court properly overruled the objection. Here it is argued for the first time that the statement should have been admitted to show that a co-defendant, who pled guilty and who was called as a defense witness, contrary to what the state sought to establish, did not recently fabricate his testimony that the appellant was not a participant in the offense. § 90.801(2)(b), Fla.Stat. (1981). The point is not preserved for review. When an objection is made on one ground at trial, no new or different ground may be considered on appeal. Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982) and cases collected therein.
Second, the question posed by the prosecutor to a police witness, "What was your reason for dismissing the one person at the scene", may have been, as argued by appellant, designed to elicit an inadmissible identification of appellant based on an anonymous source. But if there was prejudice, which we doubt, it emanated not from the court's admonition of the prosecutor to "be careful ... on the issue of hearsay and other matters ...", but from the question itself.
Third, we have on several occasions very recently been required to reverse convictions based on prosecutorial misconduct. This is another case that was tried during the same period in which overzealousness appears to have been the rule rather than an exception. The comment complained of herein also requires reversal:
Q. Mr. Baer [Prosecutor]: Ladies and gentlemen, I am going to close on this thought now: I am asking you, here to return a verdict in this case that you can feel good about it and be proud of. I am asking you to tell the community that you are not going to tolerate the violence that took place in Sewer Beach.
The remark, an impassioned...
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