Monroe v. State
| Decision Date | 15 January 1969 |
| Docket Number | No. 68--320,68--320 |
| Parties | Vaughn MONROE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
Appellant was charged in an information issued in Pinellas County with throwing a deadly weapon at an occupied vehicle 1. He was tried and found guilty by a jury. This appeal followed.
Appellant urges two points in this appeal. The first concerns the testimony of Officer Solitaire who testified in answer to a question by the prosecution that appellant, Vaughn Monroe, 'was involved in a same type incident prior to that.' Appellant argues that this statement was grounds for a mistrial because it labeled defendant as a troublemaker and urges denial of his timely motion for mistrial as error. He cites Simmons v. State, 1939, 139 Fla. 645, 190 So. 756; Gluck v. State, Fla.1952, 62 So.2d 71; Jones v. State, Fla.App.1967, 194 So.2d 24; Jordan v. State, Fla.App.1965, 171 So.2d 418; Dixon v. State, Fla.App.1966, 191 So.2d 94; Green v. State, Fla.App.1966, 190 So.2d 42; and Wilson v. State, Fla.App.1965, 171 So.2d 903, in support of this contention. However, upon close analysis it will be found that in these cases the test applied is whether or not the error committed injuriously affected the substantial rights of the appellant. This principle was applied in each of these cases and we apply it here.
When the officer testified the trial judge immediately granted a motion to strike the testimony and clearly advised the jury that they were to disregard that part of the officer's testimony. Therefore, we do not believe that the substantial rights of the appellant were injuriously affected. We believe the case falls within the principle laid down in Gay v. City of Orlando, Fla.App.1967, 202 So.2d 896, cert. denied, 390 U.S. 956, 88 S.Ct. 1052, 19 L.Ed.2d 1149, and Zide v. State, Fla.App.1968, 212 So.2d 788. The testimony given by the officer constituted harmless error and did not deprive the appellant of a fair trial.
Appellant urges that the trial judge erred in not instructing the jury on the lesser included offense of assault. The question of lesser included offenses has been adequately treated by the Florida Supreme Court in Brown v. State, Fla.1968, 206 So.2d 377. It is not necessary for the State to prove an assault in order to prove that appellant violated Section 790.19, F.S.A. Thus, by applying the test laid down in Brown, we hold that assault is not a necessarily included offense of throwing a deadly weapon at an occupied vehicle. Likewise, we hold that...
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Williams v. State, 83-287
...that there were "some other circumstances involving the defendant" sufficient to overcome possibility of prejudice); Monroe v. State, 218 So.2d 209 (Fla.2d DCA 1969) (testimony of police officer that the defendant "was involved in the same type of incident prior to that" harmless error in v......
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Williams v. State
...defendant by photograph, in the course of which the reference was made to mug shots, represented cumulative evidence. See Monroe v. State, Fla.App.1969, 218 So.2d 209; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d Affirmed. ...