Johnson v. State
| Decision Date | 15 December 1999 |
| Docket Number | No. 98-3717.,98-3717. |
| Citation | 747 So.2d 436 |
| Parties | Clarence L. JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Simone P. Firley, Assistant Attorney General, Fort Lauderdale, for appellee.
ON MOTION FOR REHEARING
We deny appellant's motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.
Appellant was convicted of burglary of a dwelling and appeals, claiming that the trial court erred in denying his request for a jury instruction and denying his two motions for mistrial. We affirm on all issues.
A neighbor of the victim noticed an unfamiliar male in the victim's apartment. Knowing that the victim was out of the country, the neighbor became suspicious and asked the male what he was doing when he walked outside the apartment. He responded that he was moving his aunt. Before the neighbor could react, the stranger jumped into his vehicle with another suspect and yelled out the window, "[y]eah, we ripped the old man off." After a jury trial, appellant was found guilty and now appeals his conviction.
Appellant testified in his own defense. During his testimony he admitted that he had a prior conviction. However, at the time of his testimony, counsel did not request a limiting instruction pursuant to Florida Standard Jury Instruction 3.10:
Standard Jury Instructions in Criminal Cases (95-1), 657 So.2d 1152, 1153 (Fla. 1995) (emphases added). Instead, counsel waited until the charge conference to request that the jury be given the instruction at issue. The trial court denied the request, noting that the instruction was to be given, if requested, at the time the evidence was received.
The standard for review of a denial of a request for a jury instruction is whether the court abused its discretion. "Trial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice." Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA), rev. denied, 700 So.2d 686 (Fla.1997) (citation omitted). In Lightfoot v. State, 591 So.2d 305 (Fla. 1st DCA 1991), the court noted that there was no authority for giving this instruction during the closing jury instructions. Thus, by failing to request that the instruction be given at the time of the testimony the defendant waived his right to complain of the omission on appeal. Similarly, in an analogous circumstance, the third district held that the trial court did not err in refusing to give a limiting instruction to the jury regarding prior inconsistent statements where the request was not made at the time the evidence was admitted. See Lopez v. State, 716 So.2d 301, 303-04 (Fla. 3d DCA 1998)
. Therefore, we hold that the trial court did not abuse its discretion with respect to the denial of the jury instruction.
We also conclude that this was not a prejudicial error which resulted in a miscarriage of justice in any event. The testimony regarding appellant's prior conviction was simply an acknowledgment that he had one prior conviction. In closing argument, the prosecutor referred to it in discussing with the jury the credibility of the appellant. This was precisely what the instruction states is the proper use of such evidence.
In his second point, the appellant claims that the court erred in refusing to grant a mistrial after a detective testified that in showing a photo lineup to a witness he explained to the witness that he had developed the lineup from possible suspects in other cases and recent investigations. Appellant contends that this was tantamount to revealing prior criminal conduct by appellant. Although the trial court denied the motion for mistrial, it did offer to give a curative instruction, but defense counsel refused, believing that a curative instruction would be inadequate. Instead, on cross-examination defense counsel established that the detective had been investigating appellant because he had pawned an item reported as stolen, but that appellant had given a reasonable explanation for his possession of the item. The pawned item was not related to the instant burglary.
Although implications of irrelevant collateral crimes should not be admitted, see Jackson v. State, 627 So.2d 70, 71 (Fla. 5th DCA 1993),
in the instant case the defense clarified that appellant was eliminated as a suspect in a collateral crime. Therefore, the detective's...
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Penalver v. State
...the defense has "gotten to" and changed a witness's testimony or that a witness has not testified out of fear. See Johnson v. State, 747 So.2d 436, 439 (Fla. 4th DCA 1999); Henry v. State, 651 So.2d 1267, 1268-69 (Fla. 4th DCA 1995). In this case, there was no evidentiary support for the pr......
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Penalver v. State, No. SC00-1602 (FL 2/2/2006)
...the defense has "gotten to" and changed a witness's testimony or that a witness has not testified out of fear. See Johnson v. State, 747 So. 2d 436, 439 (Fla. 4th DCA 1999); Henry v. State, 651 So. 2d 1267, 1268-69 (Fla. 4th DCA 1995). In this case, there was no evidentiary support for the ......
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Williams v. State
...a reversal, the instruction must be so prejudicial that a miscarriage of justice would result if not corrected. Johnson v. State, 747 So.2d 436, 438 (Fla. 4th DCA 1999) (quoting Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA Section 776.013, Florida Statutes (2005) became effective on O......
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Williams v. State, 3D07-1542.
... ... This is particularly true where a prosecutor suggests that a witness did not appear due to fear of the defendant, where there is no evidentiary support for the proposition. See Johnson ... 10 So.3d 222 ... v. State, 747 So.2d 436, 439 (Fla. 4th DCA 1999) ... In Tindal v. State, 803 So.2d 806 (Fla. 4th DCA 2001), the prosecutor argued that there were other witnesses in the case who failed to appear due to the fact that they were scared. Id. at 809. In reversing ... ...