RAYMOND R. RUSSELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Raymond Russell was convicted of aggravated battery, and appeals the trial court's denial of his motion for mistrial based on a witness's reference to a "mug photo album" during the state's case. The Florida appellate court reversed, holding that while references to mug shots do not automatically constitute reversible error, the reference here was highly prejudicial because credibility—not identification—was the central issue.
The court held that while references to mug shots do not constitute reversible error in all cases, the error here was highly prejudicial and grounds for reversal because the case's central issue was witness credibility rather than identification, making the reference unnecessarily prejudicial and not harmless error.
[1] A reference to "mug shots" does not automatically constitute reversible error.
[2] A reference to "mug shots" may be reversible error when it is highly prejudicial and not harmless within the meaning of the statute.
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“The totally unnecessary question regarding the photo album begged for the highly prejudicial answer which may have created an inference in the jury's mind that the defendant had previously been involved with the police.”
Explains why the reference was error—it unnecessarily invited prejudicial implications about prior arrests
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring the state's case in chief, a witness described a photo album containing photographs of people previously arrested as "like a mug photo album." …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Raymond Russell appeals from a conviction and sentence for the crime of aggravated battery. He alleges as error the denial of a defense motion for mistrial which was predicated upon the following question and answer during the state’s case in chief:
Q Would you tell me what this photo album looks like? Describe it for the jury.
A Big photo album like a photo album except you have photographs of people that we’ve arrested in the past or whatever. It’s like a mug photo album.
Russell promptly moved for a mistrial. The trial court denied the motion. Relying on State v. Rucker, 330 So. 2d 470 (Fla.1976), the state argues that a reference to “mug shots” does not constitute reversible error in all cases. We agree. We nevertheless reverse and remand for a new trial because the error here complained of, based upon our review of the entire record, was indeed highly prejudicial. The issues in this case involve the credibility of the state’s primary witness, Denise Reiser, and that of the defendant. Identification was never an issue in this trial. The jury’s focus was necessarily on the believability of the defendant’s testimony. The totally unnecessary question regarding the photo album begged for the highly prejudicial answer which may have created an inference in the jury’s mind that the defendant had previously been involved with the police. The reference here is not harmless within the meaning of section 924.33, Florida Statutes (1981).
Viewing the entire record and circumstances we hold that it was error to deny Russell’s motion for a mistrial. See Loftin v. State, 273 So. 2d 70 (Fla.1973); see also Encinosa v. State, 431 So. 2d 705 (Fla. 2d DCA 1983) (the denial of defendant’s motion for mistrial was proper where identity was an issue and there was other competent evidence identifying the defendant besides references to mug shots); Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982) (no harmful error where defense counsel elicited reference to mug shots); Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977), cert. denied mem., 359 So. 2d 1217 (Fla.1978) (circumstances rendered introduction of “cropped” mug shots harmless error at most).
Reversed and remanded for a new trial.
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Citator
Cited By
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McCALL v. State, 463 So. 2d 425 (Fla. 3d DCA 1985)…en testimony of alibi witnesses). A witness’s comment “may be erroneously admitted yet not be so prejudicial as to require reversal.” Ferguson, 417 So. 2d at 642. See Loftin; Encinosa v. State, 431 So. 2d 705 (Fla. 2d DCA 1983). Cf Russell v. State, 445 So. 2d 1091 (Fla. 3d DCA 1984) (although reference to mug shots not reversible error in all cases, reversible error where identity not issue at trial). The victim of the robbery identified appellant as the man with whom she had struggled just before he took he…
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D'Anna v. State, 453 So. 2d 151 (Fla. 1st DCA 1984)…of six available for the jury’s perusal. No other attention was called to the photographs beyond their intrinsic quality as “mug shots.” Loftin v. State, supra at 71; cf. Houston v. State, 360 So. 2d 468 (Fla. 3d [*153] DCA 1978); Russell v. State, 445 So. 2d 1091 (Fla. 3d DCA 1984) (witness responded to question from the State as to the source of a photograph of the defendant that the photograph came from “a photo book of people that we’ve arrested in the past; it’s like a mug book”). Furthermore, appellant…
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Olson Pierre v. State, 990 So. 2d 565 (Fla. 3d DCA 2008)…in denying the defendant’s motion for a mistrial upon this ground. We disagree. While a prosecutor’s reference to photographs in a lineup as “mug shots” may result in prejudice sufficient to warrant a mistrial or a new trial, see Russell v. State, 445 So. 2d 1091, 1091-92 (Fla. 3d DCA 1984) (reversing defendant’s aggravated battery conviction because of inappropriate State comments related to a “mug photo album”), this is not such a case. The use of the phrase “mug shot” does not automatically require revers…
Authorities Cited
- Loftin v. State, 273 So. 2d 70 (Fla. 1973)
- State v. Rucker, 330 So. 2d 470 (Fla. 1976)
- Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982)
- Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977)
- Encinosa v. State, 431 So. 2d 705 (Fla. 2d DCA 1983)