DONALD RAY ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Ray Robinson appeals his second-degree murder conviction, arguing the trial court erred by refusing to question jurors about exposure to prejudicial newspaper articles published after jury selection and by improperly limiting cross-examination of a key prosecution witness. The court reverses and remands for a new trial, establishing that trial courts must inquire into juror exposure to potentially prejudicial publicity even after jury selection is complete.
The trial court erred in failing to inquire into juror exposure to the prejudicial newspaper articles. When potentially prejudicial publicity arises after jury selection, the trial court must first determine whether the published material has prejudicial potential, and if so, inquire whether any jurors read it and whether they can render an impartial verdict. Robinson's Sixth Amendment rights were also violated by limiting his cross-examination of Muszynski regarding his competency claims, as this was relevant to attacking the credibility of the state's key witness.
[1] A trial court must inquire whether jurors have been exposed to potentially prejudicial publicity when such publicity arises after jury selection.
[2] If potentially prejudicial publicity has the potential for prejudice, the trial court must first inquire if any jurors read the material.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is elementary that a criminal defendant is to be afforded wide latitude when he cross-examines a witness against him and seeks to demonstrate bias or prejudice on the part of the witness.”
Establishes the broad right to cross-examine prosecution witnesses to probe credibility and bias, particularly for key witnesses.
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Join FLexlaw to unlock all legal intelligenceAfter jury selection on November 2, 1981, the trial judge ordered jurors not to read newspapers or watch news broadcasts about the case. The next morn…
The full statement of facts, procedural history, and disposition for this case are member content.
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FRANK D. UPCHURCH, Jr., Judge.
Appellant appeals from a judgment of conviction for second degree murder. We reverse and remand for a new trial.
The question presented is whether the trial court erred in refusing to inquire as to whether the jurors had read certain news accounts relating to appellant’s trial.
Jury selection was completed on Monday afternoon, November 2, 1981. Before recessing until the following morning, the trial judge specifically ordered the jurors not to read any newspapers, especially the Cocoa Today and the Orlando papers, or to watch any news broadcasts about the case.
After the jury was sworn the next morning, defense counsel requested that the court question the jurors as to whether any of them had read news articles which had appeared in the Cocoa Today and Orlando Sentinel that morning.1 The court denied this request. There do not appear to be any Florida cases addressing the procedure to be followed when a claim of potentially prejudicial publicity arises after the jury has been selected. However, numerous federal circuit courts of appeal and other state courts have considered the question and developed the following procedure.2 Initially, the trial court must determine whether the published material has the potential for prejudice. United States v. Perrotta, 553 F. 2d 247 (1st Cir.1977); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E. 2d 835 (Mass.1978); Brown v. State, 601 P. 2d 221 (Alaska 1979). If it does, then a two-step process is necessary. First, the court should inquire of the jurors as to whether any of them read the material in question. If none of the jurors read the material, then its publication could not have prejudiced the defendant and the trial may proceed. United States v. Carter, 602 F. 2d 799 (7th Cir.1979); United States v. Khoury, 539 F. 2d 441 (5th Cir.1976). If any of the jurors indicate they have read the material, they must be questioned to determine the effect of the publicity, i.e., whether they can disregard what they read and render an impartial verdict based solely on the evidence at trial.3 See, e.g., Margoles v. United States, 407 F. 2d 727 (7th Cir.1969). This procedure has been deemed necessary even though the trial court repeatedly admonished the jury, as here, regarding the reading of newspapers during the trial. See, e.g., United States v. Carter; United States v. Pomponio, 517 F. 2d 460 (4th Cir.1975); United States v. Barrett, 505 F. 2d 1091 (7th Cir.1975).
In the instant case, the articles in question referred to a separate charge against appellant which arose out of a well publicized jail break attempt at the county jail. Clearly, such material had the potential for prejudicing appellant in his trial on an unrelated murder charge. However, the trial court failed to even make a threshold inquiry as to the possibility of prejudice.4 The court also failed to inquire as to whether any of the jurors had, despite the court’s admonition, read the articles. The court’s failure to take any action to determine whether the jurors had been exposed to and prejudiced by the articles requires that appellant be given a new trial.
We also consider one other point raised by appellant, that being whether his sixth amendment rights were violated when the trial court limited his cross-examination of Muszynski, the state’s jailhouse witness.
After witness Muszynski testified for the state to comments made to him in jail by appellant, appellant sought unsuccessfully to cross-examine him regarding allegations he made in a pending motion for post conviction relief to the effect that he was totally incompetent at the time he committed the crime he was convicted of, at the time of his trial, and at the time his motion for post conviction relief was filed in July, 1981. Appellant claims that his purpose in asking questions about these allegations was to attack Muszynski’s credibility: to show that Muszynski, who was giving vital evidence against appellant, was at the same time claiming to be incompetent. He was not seeking to challenge Muszynski’s competence or sanity.
It is elementary that a criminal defendant is to be afforded wide latitude when he cross-examines a witness against him and seeks to demonstrate bias or prejudice on the part of the witness. See Coxwell v. State, 361 So. 2d 148 (Fla.1978); Lutherman v. State, 348 So. 2d 624 (Fla. 3d DCA 1977). See also Steinhorst v. State, 412 So. 2d 332 (Fla.1982). This is especially true when the cross-examination is of the key prosecution witness. Porter v. State, 386 So. 2d 1209 (Fla. 3d DCA 1980).
The questions sought to be asked by appellant should have been permitted as Muszynski was a key witness for the state and the questions were relevant to the issue of Muszynski’s credibility. Appellant should have been permitted to question Muszynski regarding the claim in his motion for post conviction relief, filed just a few months before the instant trial, that he “was and still is totally incompetent” and how this squared with his ability to testify at the trial, since this apparent contradiction would have been relevant on Muszyn-ski’s truthfulness.
One final observation remains. The prosecutor exceeded the bounds of propriety in closing and rebuttal arguments. We believe, however, that no good purpose would be served by discussing the specifics of closing argument and are confident that a repetition of such offensive argument will not occur in appellant’s retrial.
REVERSED and REMANDED for a new trial.
ORFINGER, C.J., and COBB, J., concur. . The Cocoa paper had published a short article entitled “Re-trial in Murder Case Begins Today.” The Orlando Sentinel published an article entitled “Murder Suspect Charged in Attempted Jail Escape.” Appellant was identified in both articles and both articles referred to the fact that appellant had recently been charged in an escape attempt at the Brevard County jail.
.See, e.g., United States v. Carter, 602 F. 2d 799 (7th Cir.1979); United States v. Herring, 568 F. 2d 1099 (5th Cir.1978); United States v. Perrotta, 553 F. 2d 247 (1st Cir.1977); United States v. Khoury, 539 F. 2d 441 (5th Cir.1976); United States v. Barrett, 505 F. 2d 1091 (7th Cir.1975); Margoles v. United States, 407 F. 2d 727 (7th Cir.1969); Reining v. United States, 167 F. 2d 362 (5th Cir.1948). While the procedure enunciated in these cases does not appear to be constitutionally mandated, see United States v. Herring, 568 F. 2d at 1105, at least two states which have recently considered the matter have adopted it. Brown v. State, 601 P. 2d 221 (Alaska 1979); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E. 2d 835 (Mass.1978).
. The mere fact that a juror may have been exposed to publicity about a case does not mean he cannot serve on a jury; rather the question is whether the juror can lay aside his impressions and opinions and render a verdict based on the evidence presented in court. United States v. Jiminez-Diaz, 659 F. 2d 562 (5th Cir.1981). See also Irvin v. Doud, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1960); Singer v. State, 109 So. 2d 7 (Fla.1959); Murphy v. State, 252 So. 2d 385 (Fla. 3d DCA 1971).
. Factors to be considered in determining the possibility of prejudice are how closely related the publicity is to the case, its timing, its prominence, its tone and the likelihood the jury was exposed to it. United States v. Herring, 568 F. 2d at 1104-1105; Brown v. State, 601 P. 2d at 232.
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Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986)…refuse to poll the jury to determine their exposure to two admittedly prejudicial and inaccurate media reports, published mid-trial and also referring to other charges pending against the appellant. This question was addressed in Robinson v. State, 438 So. 2d 8 (Fla. 5th DCA), petition for rev. denied, 438 So. 2d 834 (Fla.1983), wherein it was held that a new trial was required where the trial court failed to take any action to determine whether the jurors had been exposed to and prejudiced by certain news…
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Derrick v. State, 581 So. 2d 31 (Fla. 1991)…nished the jury, as here, regarding the reading of newspapers during the trial. See, e.g., United States v. Carter; United States v. Pomponio, 517 F. 2d 460 (4th Cir.1975); United States v. Barrett, 505 F. 2d 1091 (7th Cir.1975). Robinson v. State, 438 So. 2d 8, 9 (Fla.5th DCA) (footnote omitted), review denied, 438 So. 2d 834 (Fla.1983). Thus, it would appear that the judge should have examined the subject news article when defense counsel first called it to the court’s attention. However, any error which…
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Olson v. State, 705 So. 2d 687 (Fla. 5th DCA 1998)…evious hospitalization for mental problems, and his mother’s long-standing involvement in a victim rights organization for victims of sexual abuse. The evidence was relevant on the issues of credibility of these two witnesses. See Robinson v. State, 438 So. 2d 8 (Fla. 5th DCA 1983). In light of our reversal for a new trial, the defendant’s remaining point need not be addressed. REVERSED AND REMANDED FOR A NEW TRIAL. DAUKSCH, J., and ORFINGER, M., Senior Judge, concur.…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Irvin v. Dowd, 366 U.S. 717 (U.S. 1961)
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Singer v. State, 109 So. 2d 7 (Fla. 1959)
- Margoles v. United States, 407 F.2d 727 (7th Cir. 1969)
- Coxwell v. State, 361 So. 2d 148 (Fla. 1978)
- United States v. Herring, 568 F.2d 1099 (5th Cir. 1978)
- United States v. Barrett, 505 F.2d 1091 (7th Cir. 1974)
- United States v. Jimenez-Diaz, 659 F.2d 562 (5th Cir. 1981)
- United States v. Pasquale Perrotta, 553 F.2d 247 (1st Cir. 1977)
- United States v. Pomponio, 517 F.2d 460 (4th Cir. 1975)