JAMES ALVIN EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Alvin Evans appeals his conviction for theft, arguing that a witness's reference to identifying him from mug shots was so prejudicial it requires reversal. The Florida appellate court affirmed, holding that the reference to mug shots constituted harmless error given the strength of the eyewitness identification evidence and the absence of a request for a curative instruction.
The reference to mug shots did not necessitate automatic reversal and constituted at most harmless error. The words 'mug shot' used to describe the identification did not injuriously affect the defendant's substantial rights, as the reference does not necessarily convey prior crimes, identification was not a disputed issue, and a requested jury instruction would have cured any error.
[1] A reference to a "mug shot" does not automatically necessitate reversal; the determination of prejudice must be based on the entire record and surrounding circumstances.
[2] A reference to a mug shot in police files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the pol…
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Join FLexlaw to unlock all legal intelligence“Usually, a reference to mug shots does not necessitate an automatic reversal; rather the question must be resolved on the basis of the entire record and surrounding circumstances.”
Establishes the governing standard for evaluating prejudicial error from mug shot references—no automatic reversal rule applies.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEvans visited a jewelry store purportedly to purchase jewelry. While the owner was engraving in the back, Evans asked the saleslady for water, then st…
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FERGUSON, Judge.
Appellant visited the victim’s jewelry store purportedly to purchase jewelry. While the owner was in the rear of the store engraving, the saleslady waiting on the appellant left him alone in the front to get him water at his request. After receiving the water, the appellant told the saleslady that he had spilled some on himself and would like to go out and clean up. The saleslady then unlocked the electronically controlled front door and he left. The storeowner came out, saw appellant getting into a cab and noticed that several items of expensive jewelry were missing from display cabinets. He ran after appellant attempting to catch him, but was unsuccessful. Neither the saleslady nor the owner saw any other person in the store during the entire episode.
At trial the following exchange took place between the victim and defense counsel on cross-examination:
Q. How many times did the police come to your store other then on the first day?
A. I believe that’s all. We went down to the police station instead of them coming to us.
Q. It was once or twice?
A. Twice.
Q. Once for what purpose?
A. We had to identify who it was by mug shots, (e.s.)
Defense counsel’s motion for mistrial set forth no specific grounds and was denied. There was no request for a curative instruction. Appellant contends that the reference to mug shots was so prejudicial that a new trial is required. We cannot agree.
Usually, a reference to mug shots does not necessitate an automatic reversal; rather the question must be resolved on the basis of the entire record and surrounding circumstances. See Loftin v. State, 273 So. 2d 70 (Fla.1973); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982); Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977). Appellant concedes that identification of defendant as a person in the store on the date of the theft is not an issue. The real question is whether the circumstantial evidence excludes as a reasonable inference that someone other than the appellant took the jewelry from the store. The words “mug shot”, used by the witness in describing how she identified appellant, on this record, did not injuriously affect the substantial rights of the defendant and was therefore, at most, harmless error. A reference to a mug shot in police files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the police. Under these circumstances, including eyewitness identifications, a jury instruction, if requested and given, would have cured the error. Loftin v. State, 273 So. 2d 70; Moore v. State, 418 So. 2d 435 and Mancebo v. State, 350 So. 2d 1098.
Affirmed.
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Citator
Cited By (12 total)
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McCALL v. State, 463 So. 2d 425 (Fla. 3d DCA 1985)…al. The extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances. Loftin v. State, 273 So. 2d 70 (Fla.1973); D’Anna v. State, 453 So. 2d 151 (Fla. 1st DCA 1984); Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982); Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977), cert, denied, 359 So. 2d 1217 (Fla. 1978). See Ferguson v. State, 417 So. 2d 639 (Fla.1982). Cf. Harris v. State, 427 So. 2d 234 (Fla. 3d DCA 1983) (detective’s testimony that…
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Williams v. State, 438 So. 2d 152 (Fla. 3d DCA 1983)…essarily convey to a jury that [the] defendant has committed prior crimes or has previously been in trouble with the police,” and a jury instruction to that effect, had one been requested, which here it was not, would cure any error, Evans v. State, 422 So. 2d 60, 61 (Fla.3d DCA 1982); Moore v. State, 418 So. 2d 435, 436 (Fla.3d DCA 1982); and (3) in light of the overwhelming evidence of the defendant’s guilt,2 any undissipated prejudice arising from the police officer’s testimony must be deemed harmless err…
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Marshall v. State, 439 So. 2d 973 (Fla. 3d DCA 1983)…3d DCA 1977) (denial of motion for mistrial proper when officer’s statement that he recognized the defendant from “previous things” was subject of curative instruction). See also Williams v. State, 438 So. 2d 152 (Fla. 3d DCA 1983); Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982) (same result where reference is to “mug shot” of defendant). Accordingly, we affirm.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Loftin v. State, 273 So. 2d 70 (Fla. 1973)
- Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982)
- Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977)