JAMES CLIFTON ARMSTRONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Armstrong was convicted of burglary and appealed, challenging the trial court's jury deadlock instruction and claims that a witness comment about his silence violated his rights. The appellate court affirmed the conviction, holding that while the deadlock instruction was erroneous, it was not fundamental error and was waived by Armstrong's failure to object, and that the witness testimony was not reversible error because Armstrong had already testified to the same facts without objection.
The court held that while giving the deadlock instruction without a deadlocked jury was error, it was not fundamental error and was waived by Armstrong's failure to object. The court also held that the witness testimony about Armstrong's silence was not reversible error because Armstrong had already testified to the same facts without objection on cross-examination, and the subsequent corroborating statement by the officer merely repeated what Armstrong had already said.
[1] Giving a jury deadlock instruction without any indication of jury deadlock is not fundamental error and is waived by a failure to object.
[2] A defendant's failure to object to questions on cross-examination, even if they touch upon the right to remain silent, waives the issue on appeal.
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Join FLexlaw to unlock all legal intelligence“While we consider that the giving of the instruction in the absence of a deadlocked jury was error, such was not fundamental error, and the failure to object waived any objection appellant might have had to the instruction.”
Establishes that non-fundamental errors may be waived by failure to object
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Join FLexlaw to unlock all legal intelligenceArmstrong was charged with burglary and the theft of three guns from a mobile home. At trial, Armstrong testified that he was shopping in Marianna wit…
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McCORD, Chief Judge.
Appellant was convicted of burglary and appeals the judgment and sentence. Among other things, he contends that the trial court erred in giving Standard Jury Instruction 2.21, the jury deadlock charge, when there was no indication that the jury was deadlocked. This occurred when the jury, after having retired to consider the verdict, returned to the courtroom with a question and, without indication from the jury that they were deadlocked, the court gave the deadlock instruction. No objection was made by appellant. While we consider that the giving of the instruction in the absence of a deadlocked jury was error, such was not fundamental error, and the failure to object waived any objection appellant might have had to the instruction.
Appellant in addition contends that fundamental error occurred when the trial court denied appellant’s motion for a mistrial when a state witness commented on appellant’s right to remain silent upon his interrogation at the time of arrest. We disagree. Prior to trial, appellant gave written notice of intent to claim alibi and at trial, he testified that he was in Marianna shopping with his wife and sister-in-law at the time witnesses allegedly identified him at the E-Z Pawn Shop in Panama City where he allegedly pawned three guns which had been stolen from a mobile home two days previously. Witnesses testified that he produced his driver’s license for identification at the pawn shop. Appellant testified that upon his return from Marian-na, he found that his house had been burglarized. He further testified that he had mislaid his wallet and driver’s license about a week previously. He was asked on cross-examination by the state if he ever told the arresting officer that he was in Marianna with his wife and sister-in-law shopping, and he responded that he did not remember making a statement to the arresting officer that day. He was then asked:
“Q. Have you ever told anybody prior to today in this courtroom or your lawyer you were in Marianna shopping with your wife and sister-in-law?
A. No one except my lawyer. Q. Your lawyer is the only person you told that?
A. Yes, I reckon he is.
Q. When did you first tell him that?
A. The first time I had an appointment with my lawyer.”
No objection was made to the foregoing questions and answers on cross-examination of appellant. Thereafter, the arresting officer testified on direct examination by the state that upon arrest he advised appellant of his rights and then asked him several questions about his driver’s license which appellant answered. The officer was then asked:
“Q. Did he in your dealings or conversations with him, did he ever indicate to you that he was in Marianna, Florida, at the date and time this alleged burglary occurred?
A. Not that I recall.”
Appellant’s counsel then objected and moved for a mistrial. The motion was denied, but the court told the assistant state attorney that he had gone far enough and no further questions were asked along this line.
Appellant having not objected to the above questions asked him on cross-examination and having freely answered them, such did not constitute reversible error. See Clark v. State, 336 So. 2d 468 (Fla. 2 DCA 1976), presently pending on certiorari in the Supreme Court, and Gillian v. State, Fla.App., 364 So. 2d 729 (1977) (presently pending on petition for rehearing and being held in abeyance pending the ruling of the Supreme Court in Clark). The subsequent question and answer of the arresting officer which was objected to after the answer had been given merely corroborated appellant’s previous testimony given without objection. We, therefore, do not find the court’s denial of the motion for mistrial to be reversible error. We have considered the other questions raised by appellant and find them to be without merit.
Affirmed.
BOYER and MILLS, JJ., concur.
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Gahley v. State, 567 So. 2d 456 (Fla. 1st DCA 1990)…ed, 471 So. 2d 44 (Fla.1985); Lewis v. State, 369 So. 2d at 669; United States v. Blevinal, 607 F. 2d at 1126. Absent fundamental error, an objection is required to preserve the propriety of an Allen charge for appellate review. Armstrong v. State, 364 So. 2d 1238 (Fla. 1st DCA 1977), cert. denied, 373 So. 2d 456 (Fla.1979); Warren v. State, 498 So. 2d 472 (Fla.3d DCA 1986), review denied, 503 So. 2d 328 (Fla.1987); United States v. Taylor, 513 F. 2d 70, 72 (5th Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 361…
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In re Standard Jury Instructions IN Civil Cases-Report NO. 09-01 (Reorganization of the Civil Jury Instructions). In re Standard Jury Instructions in Civil Cases-Report No. 09-02 (Greater Weight of the Evidence, 35 So. 3d 666 (Fla. 2010)…You may now return to the jury room for further deliberations. [*806] NOTES ON USE FOR 801.3 1. This instruction should not be given unless the jury indicates it is deadlocked. Moore v. State, 635 So. 2d 998 (Fla. 4th DCA 1994); Armstrong v. State, 364 So. 2d 1238 (Fla. 1st DCA 1978). 2. This instruction should be given only once. If after having received this instruction, the jury announces again that it is deadlocked, the jury cannot be sent back for further deliberations. Tomlinson v. State, 584 So. 2d 43…
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Orestes Rodriguez v. State, 462 So. 2d 1175 (Fla. 3d DCA 1985)…la. 1st DCA), cert. denied, 240 So. 2d 642 (Fla.1970). In support of its second position the state relies upon Tejeda-Bermudez v. State, 427 So. 2d 1096 (Fla. 3d DCA 1983); Sayan v. State, 381 So. 2d 363 (Fla. 4th DCA 1980); and Armstrong v. State, 364 So. 2d 1238 (Fla. 1st DCA 1977), cert. denied, 373 So. 2d 456 (Fla.1979). The state’s reliance upon these eases is misplaced. Armstrong holds that the giving of an approved deadlock instruction before a jury impasse is indicated is not fundamental error. Tejeda…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)
- Buford Wallace Gillian v. State, 364 So. 2d 729 (Fla. 1st DCA 1977)