Kelly v. State

• Decision Date: 06 October 1967
• Docket Number: Nos. 67--184,67--220,s. 67--184
• Citation: 202 So.2d 901
• Parties: Coy KELLY, Appellant, v. STATE of Florida, Appellee. Edward Jones WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 901

202 So.2d 901

Coy KELLY, Appellant, v. STATE of Florida, Appellee.

Edward Jones WRIGHT, Appellant, v. STATE of Florida, Appellee.

Nos. 67--184, 67--220.

District Court of Appeal of Florida, Second District.

Oct. 6, 1967.

Rehearing Denied Oct 27, 1967.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellants.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

These cases involve separate appeals by appellants Coy Kelly and Edward Jones Wright from judgments of conviction entered against them involving the same criminal charge.

Information was filed against Kelly and Wright jointly charging the breaking and entering of a dwelling house in Pinellas County with intent to commit a felony. After a joint jury trial in the Circuit Court for said County, the defendants being represented at all critical stages by the Public Defender's office, they were each found guilty of breaking and entering with intent to commit a misdemeanor and were thereafter adjudged guilty by the Court and sentenced to the State Prison. The defendants filed separate notices of appeal from said judgments but the cases have been consolidated for purpose of consideration by this Court.

In the appeal here defendants raised two points: (1) that the trial Court erred in denying their motion for a mistrial made when St. Petersburg police officer Lohde, when asked if he was on any 'special assignment' on the evening defendants were arrested, replied 'assigned to participate on the surveillance of two known felons'; and (2) the Court erred in denying their motions to suppress the evidence found upon a search of their automobile by the arresting officers. We have examined both points in the light of the record and briefs filed here and are impelled to affirm the judgments appealed.

1. The Statement by Officer Lohde.

The statement complained of, 'assigned to participate on the surveillance of two knowns felons' was made by the police officer on direct examination when he was placed on the stand as a witness for the State. The record shows that defense counsel immediately objected and moved 'that the answer be stricken as being prejudicial to the defendants'. The Court granted the motion, properly instructed the jury to disregard it, and stated '(t)he answer will be stricken from the record.'

The only motion made was to strike the answer of the witness and the Court went 'all out' to grant that motion. No motion for mistrial was made at this point, and it was only after several more questions and answers were elicited that counsel for the accused moved for a mistrial, but even then frankly stated that 'I feel that the Court has certainly done all it could to remedy the situation, but this does not necessarily erase the prejudicial effect from the minds of the jury'. The Court at this point properly denied the motion for mistrial.

It will be noted that when the subject answer was given the officer at that time did not in any way identify the defendants as being the 'two known felons'. If no objection had been then made it is doubtful if the jury would have ever gotten the notion he was referring to the defendants. So actually it was this objection that first focused the attention of the jury to the defendants as being connected with the witness's answer.

Where 'the answer presents evidence which is illegal or objectionable on any known ground, the proper practice is a motion to strike it out, and have the jury directed not to consider it, the movant specifying his objection to the evidence.' Ortiz v. State, 1892, 30 Fla. 256, 11 So. 611; Robertson v. State, 1927, 94 Fla. 770, 114 So. 534. This is exactly what happened here.

And the question which prompted the witness's answer was not objected to. The officer upon interrogation had stated he was on 'special assignment' and was then asked: 'Would you explain to the Court and jury what this special assignment was?' Without objection, the witness gave the answer to which complaint is now made. The defendant in a criminal prosecution may waive his right to have only competent evidence introduced by failure to make not only proper, but timely, objections to the question. Robertson v. State, supra. The purpose of an objection is to prevent the question from being answered until the Court's ruling can be obtained. Rowe v. State, 1935, 120 Fla. 649, 163 So. 22.

On the question of the motion for mistrial, aside from it being made too late, such motion should never be granted in the midst of a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury. In State ex rel. Alcala v. Grayson, 1945, 156 Fla. 435, 23 So.2d 484, the Supreme Court said:

'In this state the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised...