Jenkins v. State
| Decision Date | 27 August 1975 |
| Docket Number | No. U--169,U--169 |
| Citation | 317 So.2d 90 |
| Parties | Allen JENKINS, Jr., and Leon Jenkins, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Harper, Jr., Gainesville, for appellants.
Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
Appellants-defendants were indicted for first degree murder. They pled not guilty. Following a jury trial, they were found guilty of second degree murder. They appeal from the judgment adjudicating them guilty of second degree murder, and sentencing them to life in prison.
Defendants contend the following errors were committed by the trial court:
1. Permitting the state to comment in closing argument on the failure of defendant Allen Jenkins, Jr., to use his common law wife as an alibi witness;
2. requiring the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial;
3. making a prejudicial statement in ruling on the admissibility of certain evidence; and
4. giving the standard jury instruction on 'defendant not testifying', but refusing to change or amend the phrase 'failure to take the witness stand' appearing therein, as requested by defendants.
We find no error and affirm.
In his opening statement, counsel for defendant Allen Jenkins, Jr., stated that the common law wife of this defendant would be called upon to testify that she and this defendant took their children to his mother between 8:00 P.M. and 8:30 P.M. on the evening of the alleged murder, and then proceeded to Cunningham's Country Club where they met with four individuals at approximately 9:00 P.M., the time of the alleged murder. The common law wife was present in the courthouse throughout the trial. In closing argument, the attorney for the State was permitted, over objection of this defendant's counsel, to comment that this defendant failed to produce his common law wife to testify as his counsel promised.
Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant's failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099 b, page 181; 5 A.L.R.2d 930.
The record presented to us fails to demonstrate that defendant's right to a fair trial was affected by the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial.
During the trial, the following colloquy took place:
Defendants immediately moved for a mistrial, which was denied. However, the trial court properly...
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Jackson v. State
...4th DCA 1988); Romero v. State, 435 So.2d 318, 319 (Fla. 4th DCA 1983), review denied, 447 So.2d 888 (Fla.1984); Jenkins v. State, 317 So.2d 90, 91 (Fla. 1st DCA 1975). In Buckrem, the defendant asserted an alibi defense and claimed that at the time of the murder he was with his wife at a f......
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Lawyer v. State, 91-2768
...that the wife and friend were not called by the defense, and the supreme court affirmed, quoting with approval from Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975): Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in makin......
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Kindell v. State, 78-1884
...stated alibi defense that he was in the company of these witnesses, were competent to give supportive testimony); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975) (recognizing rule, but finding that comment was proper where defendant in opening statement said he would call his wife as ali......
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Jacobs v. State, 79-1643.
...355 So.2d 111 (Fla. 1978); Shapiro v. State, 345 So.2d 361 (Fla.3d DCA 1977), cert. denied, 353 So.2d 678 (Fla. 1977); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975). HUBBART, Judge (dissenting). I must respectfully dissent. I would reverse the convictions under review and remand the ca......