Loftin v. State, 42346
| Decision Date | 07 February 1973 |
| Docket Number | No. 42346,42346 |
| Citation | 273 So.2d 70 |
| Parties | James Earl LOFTIN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Louis O. Frost, Jr., Public Defender, C. Wayne Alford, Sp. Asst. Public Defender, and Thomas C. Turner, Asst. Public Defender, for petitioner.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.
Submitted for consideration on certiorari upon alleged conflict with Jones v. State, 194 So.2d 24 (Fla.App.3d 1967), is the First District's affirmance at 258 So.2d 834 (Fla.App.1972) as harmless error of the prosecutor's reference to 'mug books' and 'other mug shots' in connection with the initial identification of the defendant. Fla.Const. art. V, § 3(b)(3) (1973), F.S.A. This is the sole issue submitted for review.
It has been clearly said before that such references in the prosecution of a defendant should not be made to 'mug shots' and the like and plainly held that this is error. 1 We must agree that in the present circumstances the error was harmless as we shall shortly demonstrate but we emphasize again that a prosecutor should not inject this error which can well jeopardize the prosecution and a possible conviction and thereby needlessly waste the urgently needed time of the court and jury, not to mention that of the defendant himself in being subjected to a re-trial.
We are not, however, willing to say that such error in this matter should be an 'automatic reversal' upon the mere use of the words 'mug books.' As in other such instances, the entire record and surrounding circumstances must be considered by an appellate court whose review would also be unnecessary if the prosecutor had avoided the injection of what had already been pronounced by this Court as error to do.
The opinion in Jones v. State, 194 So.2d 24 (Fla.App.3d 1967), by an assigned circuit judge with one district judge dissenting with opinion, has apparently not found support in subsequent district court opinions over the state. Willis v. State, 208 So.2d 458, 460 (Fla.App.1st 1968); Anderson v. State, 230 So.2d 704 (Fla.App.2d 1970); Moore v. State, 267 So.2d 850 (Fla.App.4th 1972).
The pertinent comment in the opinion in Jones refers to a definite statement made in the prosecutor's opening 'to the effect that appellant had been identified by mixing his picture with other mug shots' and thereby having conveyed to the jury that appellant had committed prior crimes or previously been in trouble with the police. The less definite statements in the cause before us do not rise to the level of such a definite reference, in any event, and in that respect may be distinguished.
Here the matter dealt with identification and the references became harmless because of other clear evidence of the defendant's identification, including an unequivocal identification in court. The identifying witness had a clear view of the defendant within one foot over a period of 5 to 6 minutes during the course of a robbery. Moreover, the defendant and 3 alibi witnesses testified regarding principally the matter of identification, so that the question was thoroughly gone into and the incidental, though unfortunate, references to 'mug shots' are well within the harmless error statute (§ 924.33).
Additionally, there was no objection made to the mug shot references, nor motions for mistrial nor to instruct the jury to disregard the references. These circumstances do not meet that test in Akin v. State, 86 Fla. 564, 98 So. 609 at 612 (1923), that the references must be 'of such...
To continue reading
Request your trial
-
D'Anna v. State
...1983). However, it is likewise clear that the introduction per se of "mug shots" into evidence is not reversible error. Loftin v. State, 273 So.2d 70, 71 (Fla.1973); State v. Rucker, 330 So.2d 470 (Fla.1976). Rather, the reviewing court must examine "the entire record and surrounding circum......
-
Jackson v. State
...whether they are of such character that neither rebuke nor retraction would entirely destroy their sinister influence. Loftin v. State, Fla.1973, 273 So.2d 70; Akin v. State, 86 Fla. 564, 98 So. 609, 612. Also, in view of the overwhelming evidence of guilt, the errors in that regard would n......
-
McCall v. State
...of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances. Loftin v. State, 273 So.2d 70 (Fla.1973); D'Anna v. State, 453 So.2d 151 (Fla. 1st DCA 1984); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Mancebo v. State, 350 So.2......
-
Hernandez v. State, 76-848
...400 F.2d 797 (5th Cir. 1968). The other points urged for reversal have been examined and found to be without merit. See: Loftin v. State, 273 So.2d 70 (Fla.1973); State v. Rucker, 330 So.2d 470 Therefore, for the reasons above stated, the convictions and the sentence be and the same are her......