Kelly v. State
| Decision Date | 02 May 1978 |
| Docket Number | No. 77-76,77-76 |
| Citation | 360 So.2d 77 |
| Parties | Artis J. KELLY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; Louis Weissing, judge.
Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, and Nikki Ann Clark, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Paul H. Zacks and John Cecilian, Asst. Attys. Gen., West Palm Beach, for appellee.
Affirmed.
DOWNEY, C. J., concurs specially, with opinion in which CROSS J., concurs.
A composite drawing of appellant was admitted into evidence at the trial. Appellant also offered in evidence a composite drawing of a co-defendant, but it was rejected. Through inadvertence the rejected composite found its way into the jury room together with the other properly admitted exhibits. Without the first suggestion of any prejudice accruing therefrom, appellant seeks reversal of his conviction because the jury was able to consider a composite of a co-defendant which appellant unsuccessfully attempted to have admitted into evidence. Surely it was error to allow the non-admitted exhibit into the jury room, but harmless within the meaning of Section 59.041, Florida Statutes (1977).
Accordingly, I agree that the judgment appealed from should be affirmed.
The trial judge sent to the jury room a composite drawing of a face which drawing was not in evidence. Whether or not the jury was improperly motivated to convict the Appellant is not for me to say. I cannot know if the Appellant was injured by this error but it is error. Smith v. State, 95 So.2d 525 (Fla.1957). F.R.Crim.Prac. 3.400(d). State ex rel. Pryor v. Smith, 239 So.2d 85 (Fla. 1 DCA 1970).
I would reverse for a new trial.
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State v. Hamilton
...the law books and that the telephone only was used to inform family members that jurors would be late. 6 Id. at 4. In Kelly v. State, 360 So.2d 77, 77 (Fla. 4th DCA) (mem.), cert. denied, 364 So.2d 887 (Fla.1978), Judges Downey and Cross 7 confronted a composite sketch of a codefendant mist......
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Gonzalez v. State
...Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ. PER CURIAM. Affirmed. See State v. Hamilton, 574 So.2d 124 (Fla.1991); Kelly v. State, 360 So.2d 77 (Fla. 4th DCA 1978), cert. denied, 364 So.2d 887 (Fla.1978); Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976), quashed on other grounds, 351 S......
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