MARLON S. MCCALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Marlon McCall appealed his robbery conviction and 15-year sentence, arguing that a police detective's unsolicited testimony referencing a "police rap sheet" required a mistrial. The court affirmed, holding that the comment did not rise to the level of prejudicial error warranting reversal, given the strong victim identification and McCall's failure to request a curative jury instruction.
The detective's comment did not constitute reversible error requiring a mistrial. The victim's unequivocal identification of McCall as the robber rendered any error harmless, and McCall's failure to request a curative instruction precluded reversal on this ground.
[1] The extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances.
[2] A witness's comment may be erroneously admitted yet not be so prejudicial as to require reversal.
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Join FLexlaw to unlock all legal intelligence“The extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances.”
Establishes the standard for evaluating whether improper evidence warrants reversal—prejudice must be assessed contextually.
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Join FLexlaw to unlock all legal intelligenceMcCall was convicted of robbery. The victim identified McCall as the man with whom she had struggled before he took her belongings and fled in an auto…
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BASKIN, Judge.
The primary issue presented in this appeal from a robbery conviction and fifteen-year sentence is whether the unsolicited trial testimony of a police detective that he obtained a description of appellant from the “police rap sheet” mandated the granting of a mistrial. We affirm upon a holding that based upon the circumstances of this case and appellant’s failure to request a curative instruction, the comment did not rise to the level of prejudicial error requiring a mistrial.
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 defendant had prior felony past inadmissible and not rendered harmless where state’s case not overwhelming, given 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 her belongings and disappeared in an automobile. She stated that she had previously seen the man in the same neighborhood and was certain that he was the individual who committed the crime. Her unequivocal identification rendered harmless any error which may have resulted from the improper statement. See Loftin; Encinosa.
Furthermore, appellant's failure to request a curative instruction precludes consideration of his argument that the prejudice was incurable. See Ferguson (in absence of defense request for instruction to jury to disregard testimony, trial court correctly denied motion for mistrial where any prejudice arising from remark about defendant’s prior incarceration could have been corrected by such instruction); Bell v. State, No. 82-2009 (Fla. 3d DCA Dec. 18, 1984) [10 FLW 69] (cautionary instruction to jury cured error of witness’s reference to police photo lineup); Evans (where eyewitness made identification, reference to mug shot does not require reversal because jury instruction, if requested, would have cured error); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982) (jury instruction, if requested and given, would have cured error of witness’s statement that defendant’s photograph was obtained from police files). Cf Harris (cautionary instruction did not cure prejudicial impact of testimony of defendant’s prior felony past where jury not told testimony inadmissible or that testimony should be disregarded).
Appellant further asserts that he was limited in cross-examining the victim. The record reflects that the trial court sustained the state’s objection because the questions were repetitious. We agree. Finding no reversible error, we affirm.
Affirmed.
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Traina v. State, 657 So. 2d 1227 (Fla. 4th DCA 1995)…er in issue. See Post v. State, 315 So. 2d 230 (Fla. 2d DCA 1975). However, it has been held that “the extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances.” McCall v. State, 463 So. 2d 425 (Fla. 3d DCA 1985). Because a mistrial should be granted with great caution and is only appropriate when error is so prejudicial as to vitiate the entire trial, a trial court’s denial of a mistrial should not be reversed unless it is shown that the…
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Emilio Nodel v. State, 579 So. 2d 768 (Fla. 3d DCA 1991)…int, the witness’s comment may have been erroneously admitted, but it was not so prejudicial as to require a reversal when evaluated in the context of the surrounding circumstances. See Ferguson v. State, 417. So. 2d 639 (Fla.1982); McCall v. State, 463 So. 2d 425 (Fla. 3d DCA 1985). Furthermore, the defense did not request a curative instruction which could have corrected any error. See McCall v. State, supra. As to the second point, the state concedes error as to the sentencing on the authority of Roberson…
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Paul v. State, 547 So. 2d 295 (Fla. 3d DCA 1989)…ght v. State, 427 So. 2d 326 (Fla.1983); State v. Tait, 387 So. 2d 338 (Fla.1980); Rowe v. State, 128 Fla. 394, 174 So. 820, 821 (1937); Fridovich v. State, 489 So. 2d 143, 146 (Fla. 4th DCA), rev. denied, 496 So. 2d 142 (Fla.1986); McCall v. State, 463 So. 2d 425 (Fla. 3d DCA 1985); Singleton v. State, 422 So. 2d 1082 (Fla. 3d DCA 1982); State v. Stell, 407 So. 2d 642, 643 (Fla. 4th DCA 1981); § 90.403, Fla.Stat. (1987); Fla.R. Crim.P. 3.220(d)(1).…
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
- Ferguson v. State, 417 So. 2d 639 (Fla. 1982)
- Loftin v. State, 273 So. 2d 70 (Fla. 1973)
- Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982)
- Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982)
- Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977)
- Harris v. State, 427 So. 2d 234 (Fla. 3d DCA 1983)
- D'Anna v. State, 453 So. 2d 151 (Fla. 1st DCA 1984)
- Russell v. State, 445 So. 2d 1091 (Fla. 3d DCA 1984)
- Encinosa v. State, 431 So. 2d 705 (Fla. 2d DCA 1983)