Smith v. State, 86-2624
| Decision Date | 01 December 1987 |
| Docket Number | No. 86-2624,86-2624 |
| Citation | 12 Fla. L. Weekly 2713,516 So.2d 43 |
| Parties | 12 Fla. L. Weekly 2713 Leroy SMITH, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Barbara Green, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Richard L. Kaplan, Asst. Atty. Gen., for appellee.
Before HENDRY, HUBBART and FERGUSON, JJ.
This is an appeal by the defendant Leroy Smith from a judgment of conviction and sentence entered against him for sexual battery based on an adverse jury verdict. We reverse and remand for a new trial based on the following briefly stated legal analysis.
(T. 116). When asked if she could put her feelings aside, she responded, (T. 117). She also stated that "Yes, definitely," (T. 119) she would have a problem listening to testimony about a rape. She finally said, in response to questions by the court and the prosecuting attorney, the following:
(T. 117-18) (emphasis added). Plainly, a reasonable doubt was established on this record concerning Ms. Alfonso's ability to render an impartial verdict based solely on the evidence, and the said juror should have been excused for cause. See Singer v. State, 109 So.2d 7, 23-24 (Fla.1959); Robinson v. State, 506 So.2d 1070 (Fla. 5th DCA 1987); Auriemme v. State, 501 So.2d 41 (Fla. 5th DCA 1986), rev. denied, 506 So.2d 1043 (Fla.1987). Moreover, the defendant was clearly harmed by this error as (1) he was forced to exercise an unnecessary peremptory challenge on Ms. Alfonso, (2) he thereafter exhausted all of his allotted peremptory challenges, and (3) he was denied an additional peremptory challenge, to which he was clearly entitled, having been improperly forced to waste one of his peremptory challenges on Ms. Alfonso. See, e.g., Hill v. State, 477 So.2d 553, 556 (Fla.1985); Jefferson v. State, 489 So.2d 211, 212 (Fla. 3d DCA), rev. denied, 494 So.2d 1153 (Fla.1986); see also Viera v. State, 490 So.2d 201, 202 (Fla. 3d DCA 1986); Leon v. State, 396 So.2d 203 (Fla. 3d DCA), rev. denied, 407 So.2d 1106 (Fla. 1981).
Second, we find it unnecessary to determine whether the defendant properly preserved for appellate review the admissibility of the testimony of Detective Fabian concerning a telephone conversation he had with the defendant because a new...
To continue reading
Request your trial
-
Price v. State
...who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges. Smith v. State, 516 So.2d 43 (Fla. 3d DCA 1987); see Leon v. State, 396 So.2d at 205, citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See also Jeffer......
-
Davis v. State, 94-0989
..."a victim in a case such as this would only tell the truth." See also White v. State, 579 So.2d 784 (Fla. 3d DCA 1991); Smith v. State, 516 So.2d 43 (Fla. 3d DCA 1987). Where a juror demonstrates a strong bias for or against the credibility of one side or another, which he or she is unsure ......
-
Coggins v. State, 95-130
...should have been granted. See Hill v. State, 477 So.2d 553 (Fla.1985); Price v. State, 538 So.2d 486 (Fla. 3d DCA 1989); Smith v. State, 516 So.2d 43 (Fla. 3d DCA 1987); Robinson v. State, 506 So.2d 1070 (Fla. 5th DCA 1987). I concur in the ordering of a new 1 Coggins actually appeals the d......
-
Kemp v. State, 91-3028
...553 (Fla.1985); Price v. State, 538 So.2d 486 (Fla. 3d DCA 1989); Gibson v. State, 534 So.2d 1231 (Fla. 3d DCA 1988); Smith v. State, 516 So.2d 43 (Fla. 3d DCA 1987). Furthermore, we find that the trial court committed per se reversible error by its communications with the jury outside the ......