Russell v. State, 82-1530
Decision Date | 28 February 1984 |
Docket Number | No. 82-1530,82-1530 |
Citation | 445 So.2d 1091 |
Parties | Raymond R. RUSSELL, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
William Kuypers, Key West, for appellant.
Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
Raymond Russell appeals from a conviction and sentence for the crime of aggravated battery. He alleges as error the denial of a defense motion for mistrial which was predicated upon the following question and answer during the state's case in chief:
Q Would you tell me what this photo album looks like? Describe it for the jury.
A Big photo album like a photo album except you have photographs of people that we've arrested in the past or whatever. It's like a mug photo album.
Russell promptly moved for a mistrial. The trial court denied the motion. Relying on State v. Rucker, 330 So.2d 470 (Fla.1976), the state argues that a reference to "mug shots" does not constitute reversible error in all cases. We agree. We nevertheless reverse and remand for a new trial because the error here complained of, based upon our review of the entire record, was indeed highly prejudicial.
The issues in this case involve the credibility of the state's primary witness, Denise Reiser, and that of the defendant. Identification was never an issue in this trial. The jury's focus was necessarily on the believability of the defendant's testimony. The totally unnecessary question regarding the photo album begged for the highly prejudicial answer which may have created an inference in the jury's mind that the defendant had previously been involved with the police. The reference here is not harmless within the meaning of section 924.33, Florida Statutes (1981).
Viewing the entire record and circumstances we hold that it was error to deny Russell's motion for a mistrial. See Loftin v. State, 273 So.2d 70 (Fla.1973); see also Encinosa v. State, 431 So.2d 705 (Fla. 2d DCA 1983) ( ); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982) ( ); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert. denied mem., 359 So.2d 1217 (Fla.1978) (...
To continue reading
Request your trial-
D'Anna v. State
...quality as "mug shots." Loftin v. State, supra at 71; cf. Houston v. State, 360 So.2d 468 (Fla. 3d DCA 1978); Russell v. State, 445 So.2d 1091 (Fla. 3d DCA 1984) (witness responded to question from the State as to the source of a photograph of the defendant that the photograph came from "a ......
-
McCall v. State
...to require reversal." Ferguson, 417 So.2d at 642. See Loftin; Encinosa v. State, 431 So.2d 705 (Fla. 2d DCA 1983). Cf. Russell v. State, 445 So.2d 1091 (Fla. 3d DCA 1984) (although reference to mug shots not reversible error in all cases, reversible error where identity not issue at The vic......
-
Pierre v. State
...in a lineup as "mug shots" may result in prejudice sufficient to warrant a mistrial or a new trial, see Russell v. State, 445 So.2d 1091, 1091-92 (Fla. 3d DCA 1984) (reversing defendant's aggravated battery conviction because of inappropriate State comments related to a "mug photo album"), ......