JEFFERSON LANE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jefferson Lane was convicted of armed robbery as a principal in two counts. The Florida District Court of Appeal reversed his conviction and remanded for a new trial based on two constitutional and procedural errors: his exclusion from jury peremptory challenges and the prosecutor's improper comments suggesting he had a burden to present alibi evidence.
Lane's exclusion from peremptory challenges was constitutional error that was not harmless beyond reasonable doubt. The prosecutor's improper 'straw man' argument regarding alibi evidence, which Lane had not presented, was prejudicial error that shifted the burden of proof to the defendant.
[1] A defendant has a constitutional right to be present during the peremptory challenges portion of jury selection.
[2] Exclusion of a defendant from the peremptory challenges stage of jury selection is not harmless error when the evidence is not overwhelming.
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Join FLexlaw to unlock all legal intelligence“It is well settled that the challenging of jurors is one of the essential stages of a criminal trial where a defendant's presence is required.”
Establishes that exclusion from peremptory challenges violates constitutional right to presence at essential trial stages
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Join FLexlaw to unlock all legal intelligenceLane was present during voir dire but excluded from the peremptory challenge process, which was conducted in a hallway to prevent the venire from over…
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HENDRY, Judge.
Jefferson Lane appeals from his conviction and sentence as a principal in two counts of armed robbery. For reasons more fully stated below, we reverse.
Appellant raises two issues on appeal, both of which have merit. First, he argues that he was wrongfully excluded from the peremptory challenges portion of the jury selection process. Appellant was present during the voir dire but, due to the small size of the courtroom, the peremptory challenges were held in a hallway outside the courtroom in order to prevent the venire from overhearing the challenging. Appellant asked to be present but the corrections officer in charge of security for the courtroom refused because he did not have sufficient personnel to guard appellant. Appellant’s objection to this exclusion was overruled.
It is well settled that the challenging of jurors is one of the essential stages of a criminal trial where a defendant’s presence is required. Herzog v. State, 439 So. 2d 1372 (Fla.1983); Francis v. State, 413 So. 2d 1175 (Fla.1982); Walker v. State, 438 So. 2d 969 (Fla. 2d DCA 1983); Rule 3.180(a)(4), Florida Rules of Criminal Procedure. Thus, appellant’s exclusion violated his constitutional right to be present at a stage where fundamental fairness might be thwarted by his absence. Francis v. State, 413 So. 2d at 1177. Since there is nothing in the record to suggest that appellant waived this right, and since the other evidence presented was not so overwhelming, we cannot say that the constitutional error was harmless. Palmes v. State, 397 So. 2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).
Appellant also argues that the trial court erred in denying his motion for a mistrial after the prosecutor repeatedly made improper comments on appellant’s failure to call alibi witnesses when there was no alibi defense presented. Because the whole issue of alibi was raised by the state, we find that the prosecutor’s “straw man” argument and actual use of the word “alibi” may have led the jury to believe that appellant had the burden of proving his innocence, Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983); Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA), pet. for rev. denied, 440 So. 2d 353 (Fla.1983); Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982), and was, therefore, prejudicial error. Reversed and remanded for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Consalvo v. State, 697 So. 2d 805 (Fla. 1996)…9-200. Similarly, in Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988), the prosecutor improperly attempted to create an alibi defense for the defendant and then commented on the defendant’s failure to call alibi witnesses. See also Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)(holding where whole issue of alibi was raised by state, prosecutor’s repeated improper comments on defendant’s failure to call alibi witnesses was prejudicial error). The Fourth District found that “but for the prosecutor’s creati…
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Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987)…Millian v. State, 409 So. 2d 197 (Fla. 3d DCA 1982); where a prosecutor refers to testimony or items not in evidence, e.g., Vaczek v. State, 477 So. 2d 1034 (Fla. 5th DCA 1985); Williamson v. State, 459 So. 2d 1125 (Fla. 3d DCA 1984); Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984); Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983), or where a prosecutor indulges in personal attacks upon an accused, his defense, or his counsel, e.g., Waters v. State, 486 So. 2d 614 (Fla. 5th DCA), rev. denied, 49…
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Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988)…sted, i.e., appellant’s friend and his friend’s father, there would not have been even a hint as to the existence of a possible alibi defense. Appellant relies on the cases of Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983), and Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984), in support of his argument that the prosecutor’s line of questioning and comments in closing argument regarding the alibi witnesses were impermissible and constituted reversible error. Our review of the record in the instant case…
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
- Johnson v. Florida, 454 U.S. 882 (U.S. 1981)
- Palmes v. State, 397 So. 2d 648 (Fla. 1981)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Fredrick Herzog v. State, 439 So. 2d 1372 (Fla. 1983)
- Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)
- Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983)
- Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)
- Walker v. State, 438 So. 2d 969 (Fla. 2d DCA 1983)