Ivory v. State
| Citation | 330 So.2d 853 |
| Decision Date | 20 April 1976 |
| Docket Number | No. 75--943,75--943 |
| Parties | Donnie Lee IVORY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
The facts on this appeal have been accurately set forth in the dissenting opinion. The only question on appeal is whether the errors which occurred deprived the defendant of a fair trial upon the charge of murder in the first degree. Because the defendant was found guilty of only the lesser included offense of manslaughter and because the medical examiner's report could not, under the facts of this case, have contributed to the defense of self-defense or have further reduced the crime to assault, we reach the conclusion that the error was harmless. Cf. Cornelius v. State, Fla.1950, 49 So.2d 332; and Culbertson v. State, Fla.App.1975, 306 So.2d 142.
Affirmed.
Donnie Lee Ivory, the defendant, was charged by indictment with first degree murder. During trial, the court reduced the charge to second degree murder and after much deliberation the jury found the defendant guilty of manslaughter. Ivory was convicted of manslaughter and sentenced to five years in the state penitentiary.
The evidence showed that Ivory owed the victim, one Robert Carolina, $5 for a gambling debt. On October 28, 1974, at the Ponderosa Bar, the victim saw Ivory with a check and demanded immediate payment. The two began a fist fight which was broken up. Fifteen minutes later, Ivory returned to the Ponderosa and paid the $5 debt to Carolina who then followed Ivory outside. There was an argument; Carolina pointed his finger in Ivory's face and threatened to kill him; Ivory saw a gun in Carolina's waist band, grabbed it and shot Carolina to death. Ivory contends that he acted in self defense. Several witnesses, including two police officers, testified that Carolina had a bad reputation in the community as a violent person.
The medical examiner testified as to the wounds received by the deceased as a result of the shooting. The medical examiner's report was not admitted into evidence.
After retiring to consider its verdict, the jury sent out two notes requesting the following: the charge to the jury; the defendant's statement; The medical examiner's report and 'the brief definitions of third degree murder and the various types of manslaughter.' In response, the court advised the bailiff without notifying counsel, that the jury 'could have the documentary exhibits, not realizing that one of the items had not been in evidence.' The request for the charge was denied, but the medical examiner's report was given to the jury and remained with the jury for approximately 45 minutes before the court requested that the bailiff take it away. The court told counsel that, 'It appears that a medical examiner's report, not in evidence was submitted to the jurors in error.' The court denied the defendant's motion for a mistrial, but gave the jury a curative instruction to disregard the written medical examiner's report which was not in evidence. 'You may, however, rely on the testimony of the medical examiner that you have heard from the witness stand.' Ivory was found guilty of manslaughter and was convicted and sentenced.
The thrust of Ivory's appeal is that the trial court erred in permitting the medical examiner's report to be taken into the jury room in response to a request from the jury where the report had never been admitted into evidence, and in failing to give the defendant and his counsel the opportunity to be present and object or request alternative instructions, thereby depriving the defendant of a fair trial...
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State v. Hamilton
...to the case. Rather, it dealt with factual issues that had some minor connection to the case. Similarly, in Ivory v. State, 330 So.2d 853, 853 (Fla. 3d DCA 1976), quashed on other grounds, 351 So.2d 26 (Fla.1977), the Third District also applied a harmless error analysis. The issue in Ivory......
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Morris v. State
...was incumbent upon the defendant to demonstrate prejudice arising from the trial judge's response to a jury request. See Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976), rev'd, 351 So.2d 26 (Fla.1977). Morris does not allege that any prejudice resulted in his case. Thus, the question becom......
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Williamson v. State
...facts have been sent to the jury room, however, the courts have generally applied a harmless error analysis. See, e.g., Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976), quashed on other grounds, 351 So.2d 26 (Fla.1977); Beard v. State, 104 So.2d 680 (Fla. 1st DCA 1958). The matter of the 1......
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Ivory v. State
...report. In a per curiam decision, Judge Nathan dissenting, the Third District Court of Appeal affirmed the conviction, Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976). Because we find that it was prejudicial error for the trial judge to respond to the jury's inquiries outside the presence ......
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Juror misconduct: balancing the need for secret deliberations with the right to a fair and impartial trial.
...shifts; and the party opposing the new trial must objectively demonstrate that there is such possibility. See, e.g., Ivory v. State, 330 So. 2d 853 (Fla. 3d DCA 1976), for an example of how this demonstration is accomplished. This objective demonstration of no prejudicial impact must be don......