Ward v. State, 89-1897
| Decision Date | 12 April 1990 |
| Docket Number | No. 89-1897,89-1897 |
| Citation | 559 So.2d 450 |
| Parties | 15 Fla. L. Weekly D937 Frankie Lee WARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jeffrey P. Whitton, Panama City, for appellant.
Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Asst. Atty. Gen., and Dave Sutton, Certified Legal Intern, Tallahassee, for appellee.
Appellant, Frankie Lee Ward, appeals the trial court's denial of his motion for mistrial. We reverse, and remand for a new trial.
Ward was charged in the instant case with aggravated assault, alleged to have occurred when he pulled a pistol out of his pants and threatened to kill the victim. During direct examination of the victim, the prosecutor asked how long she had known appellant prior to the evening of the alleged assault. The victim replied, Defense counsel then asked to approach the bench, and the trial court immediately stated:
I will deny your motion. Just disregard that statement.... That wasn't responsive to any question. Don't pay any attention to that. Just answer the question. Don't talk about anybody's prior record. You can't talk about that.
In State v. DiGuilio, 491 So.2d 1129 (Fla.1986), the supreme court defined the harmless error test as requiring the State to prove that there was no reasonable possibility that the error contributed to the conviction. The court found application of the harmless error test to require the appellate court to closely examine both the permissible evidence on which the jury could have legitimately relied, and the impermissible evidence which might have improperly influenced the jury verdict. As the court reiterated in State v. Lee, 531 So.2d 133 (Fla.1988), the DiGuilio harmless error test is not one where the appellate court substitutes itself for the jury and determines if the evidence of guilt is sufficient based on the permissible evidence. Instead, the appellate court's function is to determine what effect the impermissible evidence had on the trier of fact.
Under the circumstances of the instant case, we find that the State has failed to bear its burden of establishing that the erroneous statement made by the victim was harmless beyond a reasonable doubt. An examination of the permissible evidence presented in this case reveals the testimony of four witnesses (two for the defense...
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