EDWARD BATES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Edward Bates appeals his conviction for sexual battery after the trial court improperly admitted hearsay testimony about a statement he allegedly made regarding prior imprisonment. The court held that admission of character-attacking hearsay without the defendant putting his character in issue constituted reversible error requiring a new trial.
The trial court erred in denying the mistrial motion because the prosecution impugned the character of the accused without the accused first putting character into issue at trial, and the curative instruction given was insufficient to cure the prejudicial effect of the hearsay testimony.
[1] A defendant's character may not be impugned by the prosecution unless the defendant first puts character into issue at trial.
[2] A curative instruction is insufficient to cure prejudice arising from inadmissible hearsay testimony concerning a defendant's prior imprisonment.
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Join FLexlaw to unlock all legal intelligence“It is fundamental that the prosecution may not impugn the character of an accused unless the accused first puts character into issue at trial.”
Establishes the governing legal principle that character evidence against the defendant is impermissible unless the defendant initiates character evidence first.
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Join FLexlaw to unlock all legal intelligenceBates was charged with sexual battery with force not likely to cause serious injury. During trial, a police officer testified that the victim told him…
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[*1034] PER CURIAM.
Edward Bates appeals a judgment of conviction and sentence of fifteen years imprisonment entered after a jury trial on the charge of sexual battery with the use of force not likely to cause serious injury under Section 794.011(5), Florida Statutes (1981).
It is appellant’s contention on appeal that the trial court erred in denying his motion for mistrial because a police officer testified to an alleged statement of the appellant related to him by the victim of the sexual battery in this case. The officer testified that the victim told him that appellant had stated to her that he had been in prison before. Counsel for appellant objected to such testimony and moved for a mistrial on the grounds that it constituted an impermissible and prejudicial attack upon the character of appellant (who did not testify at trial), and denied him a fair and impartial trial as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. The court denied the motion, informing counsel that it would give a curative instruction. Counsel for appellant objected that any such instruction would not be sufficient to cure the prejudice resulting from the hearsay statement that appellant had been in prison. The court proceeded to instruct the jury that the testimony of the officer was hearsay and to “[pjlease disregard what the officer has been saying or has said up to this point regarding what [the victim] told him as being hearsay and rely as to what [the victim] said from the testimony of [the victim].... ”
We find merit in the appellant’s contention on appeal and agree that the instruction given was insufficient. Odom v. United States, 377 F. 2d 853, 859-60 (5th Cir.1967).
It is fundamental that the prosecution may not impugn the character of an accused unless the accused first puts character into issue at trial. Wilt v. State, 410 So. 2d 924 (Fla. 3d DCA 1982); Hodges v. State, 403 So. 2d 1375 (Fla. 5th DCA 1981), petition for review denied, 413 So. 2d 877 (Fla.1982); Albright v. State, 378 So. 2d 1234 (Fla. 2d DCA 1979).
We have carefully reviewed the record on appeal with its sharp differences in the testimony presented, and the briefs and argument of counsel, and have concluded that the refusal of the trial court to grant a mistrial was reversible error. 'Therefore the judgment and sentence are reversed and the cause is remanded for a new trial.
Reversed and remanded.
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Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985)…State, 427 So. 2d 1069, 1069-70 (Fla. 2d DGA 1983). A curative instruction will not necessarily erase the effect of improper testimony from the minds of jurors. See Odom v. United States, 377 F. 2d 853, 859-60 (5th Cir.1967) cited in Bates v. State, 422 So. 2d 1033 (Fla. 3d DCA 1982). [*10] As to contention (2), expression of personal beliefs by a prosecutor is improper. See, e.g., O’Callaghan v. State, 429 So. 2d 691 (Fla.1983); Murray v. State, 425 So. 2d 157 (Fla. 4th DCA 1983), quashed on other grounds, 44…
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Smith v. State, 516 So. 2d 43 (Fla. 3d DCA 1987)…testimony of Detective Fabian was clearly inadmissible — indeed, the state makes no effort to defend its admissibility — and therefore the trial court should not admit same upon the new trial which we are ordering in this cause. See Bates v. State, 422 So. 2d 1033, 1034 (Fla. 3d DCA 1982); Sias v. State, 416 So. 2d 1213, 1217 (Fla. 3d DCA), rev. denied, 424 So. 2d 763 (Fla.1982); Albright v. State, 378 So. 2d 1234, 1235 (Fla. 2d DCA 1979); Andrews v. State, 172 So. 2d 505, 507 (Fla. 1st DCA 1965). The final…
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Dayle Shaffer v. State, 619 So. 2d 409 (Fla. 4th DCA 1993)…for mistrial. We regard the hearsay statement identifying appellant as the perpetrator of the robbery as being so thoroughly prejudicial that it cannot be cured by a simple admonition to disregard it under the facts of this case. See Bates v. State, 422 So. 2d 1033 (Fla. 3d DCA 1982). No one else was able to make any identification of the suspects, and the rest of the state’s case was made up entirely of circumstantial evidence. Therefore, in this case we believe that the trial court abused its discretion in f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Odom v. United States, 377 F.2d 853 (5th Cir. 1967)
- Hodges v. State, 403 So. 2d 1375 (Fla. 5th DCA 1981)
- Wilt v. State, 410 So. 2d 924 (Fla. 3d DCA 1982)
- Elwood Lamar Albright v. State, 378 So. 2d 1234 (Fla. 2d DCA 1979)