Loudd v. State, 76-53
| Decision Date | 14 March 1978 |
| Docket Number | No. 76-53,76-53 |
| Citation | 358 So.2d 188 |
| Parties | Rommie L. LOUDD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ellis Rubin Law Offices, Miami, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
DOWNEY, J., concurs specially, with opinion.
The most serious point raised on this appeal questions the propriety of allowing a person who was initially a co-defendant to testify that he pleaded guilty and has been sentenced to prison.
Appellant Loudd, Alfonso Cain and Toby Williams were charged in a single information with delivery of cocaine. Cain and Williams pleaded guilty and were sentenced prior to Loudd's trial. Cain became a witness for the State during Loudd's trial and testified at length about Loudd's complicity in the drug transaction which was the subject matter of this prosecution. The prosecutor then questioned Cain concerning his guilty plea and ensuing sentence. Loudd moved for a mistrial which was denied, as was his request for a cautionary instruction.
Loudd contends on appeal that the admission of Cain's testimony regarding his guilty plea and sentence prejudiced his right to a fair trial and is reversible error. Loudd relies upon Thomas v. State, 202 So.2d 883 (Fla. 3rd DCA 1967) and several other Florida cases which will be discussed hereafter. Without directly treating the Florida cases, the State argues that "the one common thread that runs through the doctrine appellant relies upon is the denial of the right of confrontation . . .". My study of the authorities speaking to this question leads me to a different conclusion. While hearsay may be a proper objection in many of the cases in which this question arises, the harmful aspect of allowing the jury to know that a co-defendant or an accomplice has pleaded guilty is that the evidence is irrelevant to the guilt or innocence of the defendant on trial and could well be used by the jury to infer the guilt of the defendant in question. The general rule is that when two persons have been charged with the same offense but are tried separately, it is improper to disclose during trial that another defendant has been convicted or has pleaded guilty. This is because competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense. Each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence. Thomas, supra; Moore v. State, 186 So.2d 56 (Fla. 3rd DCA 1966); 22A C.J.S. Criminal Law § 784.
In the first Florida case treating this question, Grisette v. State, 152 So.2d 498 (Fla. 1st DCA 1963), the court held it was not improper for the court to advise the jury that several of the defendants had pleaded no contest and that the defendant had not been prejudiced thereby. In Vitiello v. State, 167 So.2d 629 (Fla. 3rd DCA 1964), the court likewise held no prejudice resulted from the court's informing the jury that a co-defendant had changed his plea from not guilty to guilty. However, it was also found that the point had not been preserved. Furthermore, in Bocanegra v. State, 303 So.2d 429 (Fla. 2nd DCA 1974), the court held that it was not prejudicial error to have allowed a co-defendant who testified to state, over objection, that he pleaded guilty, because of the cautionary instructions given by the court. Likewise in Lowery v. State, 177 So.2d 855 (Fla. 1st DCA 1965), the court held that the trial court correctly denied defendant's motion for a mistrial and that the defendant was not prejudiced because the jury overheard a statement that the co-defendant had pleaded guilty. In so holding, ...
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Travieso v. State, s. 83-245
...effect upon the determination of the guilt or innocence of the defendant. Parker v. State, 456 So.2d 436 (fla.1984); Loudd v. State, 358 So.2d 188 (Fla. 4th DCA), cert. denied 365 So.2d 713 (Fla.1978). However, each case must be examined to determine whether the error has been preserved and......