BURT HICKOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Burt Hickox was convicted of sexual battery of his eleven-year-old stepdaughter. On appeal, he challenged the admission of testimony alluding to prior sexual abuse allegations, the denial of his mistrial motion, and the trial court's failure to instruct the jury on penalties for the capital felony offense. The appellate court affirmed the conviction, finding the erroneous testimony harmless error and rejecting his other contentions.
The court affirmed the conviction, holding that: (1) although the challenged testimony violated the pretrial stipulation's intent and purpose, the trial court did not abuse its discretion in denying the mistrial motion because the infraction appeared unintentional and fell into the harmless error category when viewed against overwhelming evidence of guilt; (2) a trial court instruction to the witness outside the jury's presence could have substantially prevented further prejudicial comments, but appellant failed to request such instruction; and (3) the contention that the trial court erred by failing to instruct the jury on penalties has been rejected by the court in prior decisions.
[1] A trial court does not abuse its discretion in denying a motion for mistrial when a witness's testimony inadvertently violates a pretrial stipulation, absent evidence of…
[2] An inadvertent reference to prior uncharged misconduct by a witness may constitute harmless error when viewed in the context of overwhelming evidence of guilt.
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Join FLexlaw to unlock all legal intelligence“We agree with appellant that the challenged testimony violated the intent and purpose of the pretrial stipulation. However, we also note the absence of any contention that the infraction was intentional.”
Establishes that while the stipulation was violated, the court found no intentional misconduct, which was critical to the harmless error analysis.
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Join FLexlaw to unlock all legal intelligenceAppellant was tried for sexual battery of his eleven-year-old stepdaughter involving one specific attack. During trial, a state witness alluded to sta…
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SMITH, Judge.
During appellant’s trial on a charge of sexual battery of his eleven-year-old stepdaughter, involving one specific attack, a witness for the state alluded to the fact that the child victim had stated to her that appellant had sexually abused her on prior occasions. Appellant urges that the trial court should have granted his motion for mistrial, since the admission of this “other crime” evidence violated the state’s pretrial stipulation that no such evidence would be used, and the state gave no notice of intent to use such evidence as required by statute, Section 90.404(2)(b)l., Florida Statutes (1985). Appellant also argues that since the offense charged under Section 794.-011(2) is a “capital felony,” appellant was entitled, under Rule 3.390(a), Florida Rules of Criminal Procedure, to a jury instruction on penalties for the offense. We affirm.
We agree with appellant that the challenged testimony violated the intent and purpose of the pretrial stipulation. However, we also note the absence of any contention that the infraction was intentional. The trial court determined that it was “unexpected” on the part of the state, and we conclude that the court did not abuse its discretion in denying the motion for mistrial. Viewed in the context of the overwhelming evidence of guilt, uncontra-dicted by any direct testimony, we are persuaded that the inadvertent comment by the witness falls into the harmless error category. Cf. Nicholson v. State, 486 So. 2d 688 (Fla. 3d DCA 1986).
As for appellant’s contention that his effective cross-examination of the witness was hampered, because of the risk of eliciting even further comments on appellant’s past conduct, we observe that an instruction to the witness by the trial court outside the jury’s presence concerning the stipulated limitation of testimony would have substantially prevented further prejudicial comments. No request was made for such instruction.
Finally, appellant’s contention that the trial court erred by failing to instruct the jury on penalties for the offense has been recently rejected by this court. Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986). Finding no merit in the remaining arguments by appellant, the judgment of conviction and sentence are
AFFIRMED.
WENTWORTH and BARFIELD, JJ., concur.
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Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)…d to inform the jury of the possible sentence to be imposed upon appellant for the crime of sexual battery. Id. at 628. See also Dailey v. State, 501 So. 2d 15 (Fla. 2d DCA 1987); Davis v. State, 495 So. 2d 928 (Fla. 4th DCA 1986); Hickox v. State, 492 So. 2d 744 (Fla. 1st DCA 1986). We do agree, however, with appellant’s contentions that the trial court erred in sentencing him on the indecent assault charge without preparing a guidelines scoresheet and without requiring the State to prove the degree of cer…
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McCLAIN v. State, 516 So. 2d 53 (Fla. 2d DCA 1987)…llate court determines that the defendant would have been convicted even if the error had not occurred. See, e.g., Roman v. State, 475 So. 2d 1228, 1234 (Fla.1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986); Hickox v. State, 492 So. 2d 744, 745 (Fla. 1st DCA 1986); Nicholson v. State, 486 So. 2d 688 (Fla. 3d DCA), review denied, 500 So. 2d 545 (Fla.1986). The Supreme Court of Florida has recently explained the harmless error test. The new standard whereby we determine whether an erro…
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Burt Norman Hickox v. State, 569 So. 2d 776 (Fla. 1st DCA 1990)…. In June of 1985, appellant Hickox was convicted by jury of capital sexual battery and sentenced to life imprisonment with no possibility of parole for 25 years. His conviction and sentence were affirmed on appeal to this court in Hickox v. State, 492 So. 2d 744 (Fla. 1st DCA 1986). In January of 1987, appellant filed a motion for post-conviction relief through private counsel, Lacy Mahon, raising only one issue — that appellant had been denied the right to testify at trial in his own behalf. The motion was…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986)
- Nicholson v. State, 486 So. 2d 688 (Fla. 3d DCA 1986)