Jones v. State, 87-322

Decision Date23 March 1988
Docket NumberNo. 87-322,87-322
Citation522 So.2d 981,13 Fla. L. Weekly 750
Parties13 Fla. L. Weekly 750 Samuel JONES, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

The appellant raises four issues in this criminal appeal, one of which, the failure to grant a mistrial because of prejudicial comments made by the prosecution, we find to be of merit and reverse and remand. In light of our holding on this issue, we decline to address the remaining three issues.

The appellant was charged with a fourteen-count information with various offenses resulting from his alleged participation in robbery. Prior to trial, defense counsel filed a motion seeking funds for the appointment of an expert, or, in the alternative, a motion in limine barring the admission of certain anticipated evidence. The primary defense offered by appellant went to the victims' inconsistent identification of appellant as the perpetrator of the crimes, in that they had failed, in their pretrial statements, to mention defendant's silver crowned front tooth. Appellant's trial counsel, surmising that the state would argue, in opposition to the defense of misidentification, that the crown in question could easily be removed, requested that either the appellant be granted funds "with which to hire a dentist for examination and possible testimony to the effect that Defendant's tooth-crown is permanent", or that the "Court prohibit the State from testimony and/or argument contending that the tooth-crown is easily removable." The court denied the motion for expert funds, but granted the motion in limine restricting the state's evidence and comments for such purpose.

At trial, a witness for the appellant testified that he had seen the appellant the day before the robbery occurred and had then observed the silver crown. During cross-examination, the prosecution inquired, "Are you aware that silver crowns are sometimes removed?" The defendant's motion for mistrial was denied, but the trial court instructed the jury to disregard the question. In closing argument, the state again referred to the removability of the appellant's crowned tooth, this time commenting on the defense's lack of a dental expert. 1 The defendant's objection was overruled and the motion for mistrial again denied. The jury found the appellant guilty of one count of armed robbery, three counts of armed kidnapping, one count of use of a firearm during the commission of a felony, one count of false imprisonment, three counts of aggravated assault and one count of burglary.

We conclude that, viewing the record as a whole, the comments made by the prosecution constitute reversible error. The test for determining whether an error is harmless was articulated by the Florida Supreme Court in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986), as follows:

Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

(emphasis supplied) If the only violation of the pretrial order had been the question posed by the prosecution on cross-examination, we might be inclined to hold the error only harmless, as a curative instruction was then given by the court. Nevertheless, the record discloses that following the state's improper cross-examination, the trial court, while addressing the attorneys at side-bar, specifically found a violation of the pretrial order, and admonished the state not to mention again the issue of whether the appellant's teeth were removable. The state's comments in closing argument, referring to the appellant's failure to produce a dental expert, were thus not only in direct violation of the pretrial order, but the court's warning during trial as well.

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