FRANKIE LEE WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frankie Lee Ward appeals the denial of his motion for mistrial after the victim testified about his prior incarceration during direct examination in an aggravated assault case. The court reversed, finding that evidence of the defendant's prior imprisonment was improperly admitted and not harmless error.
The trial court erred in denying the motion for mistrial. The impermissible reference to the defendant's prior incarceration was not harmless error because the State failed to prove that there was no reasonable possibility the error contributed to the conviction.
[1] A mistrial should be granted when a witness's unsolicited, inadmissible testimony about a defendant's prior incarceration creates a reasonable possibility of influencing…
[2] The harmless error test requires the State to prove that there is no reasonable possibility that an error contributed to the conviction.
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Join FLexlaw to unlock all legal intelligence“the State to prove that there was no reasonable possibility that the error contributed to the conviction”
Defines the harmless error standard that the State must satisfy to overcome an erroneous admission of evidence
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Join FLexlaw to unlock all legal intelligenceWard was charged with aggravated assault for allegedly pulling a pistol and threatening to kill the victim. During the victim's direct examination, th…
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SHIVERS, Chief Judge.
Appellant, Frankie Lee Ward, appeals the trial court’s denial of his motion for mistrial. We reverse, and remand for a new trial.
Ward was charged in the instant case with aggravated assault, alleged to have occurred when he pulled a pistol out of his pants and threatened to kill the victim. During direct examination of the victim, the prosecutor asked how long she had known appellant prior to the evening of the alleged assault. The victim replied, “I don’t know how long it was. It was right after — he was already in prison and it was after he got out.” Defense counsel then asked to approach the bench, and the trial court immediately stated:
I will deny your motion. Just disregard that statement_ That wasn’t respon sive to any question. Don’t pay any attention to that. Just answer the question. Don’t talk about anybody’s prior record. You can’t talk about that.
In State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), the supreme court defined the harmless error test as requiring the State to prove that there was no reasonable possibility that the error contributed to the conviction. The court found application of the harmless error test to require the appellate court to closely examine both the permissible evidence on which the jury could have legitimately relied, and the impermissible evidence which might have improperly influenced the jury verdict. As the court reiterated in State v. Lee, 531 So. 2d 133 (Fla.1988), the DiGuilio harmless error test is not one where the appellate court substitutes itself for the jury and determines if the evidence of guilt is sufficient based on the permissible evidence. Instead, the appellate court’s function is to determine what effect the impermissible evidence had on the trier of fact.
Under the circumstances of the instant case, we find that the State has failed to bear its burden of establishing that the erroneous statement made by the victim was harmless beyond a reasonable doubt. An examination of the permissible evidence presented in this case reveals the testimony of four witnesses (two. for the defense and two for the State), each of whom contradicted the other three in numerous respects with regard to whether and how the alleged assault took place. As a result of the weakness of the evidence as a whole, we find that there exists at least a “reasonable possibility” that the impermissible statement made by the victim improperly influenced the jury’s verdict.
Accordingly, we reverse and remand for new trial.
WIGGINTON, J., concurs.
BARFIELD, J., concurs, with opinion.
BARFIELD, Judge,
concurring.
I concur in the result reached in this case because I believe the trial judge abused his discretion in not granting the renewed motion for mistrial at the close of all the evidence. I make this distinction because it was entirely appropriate for the trial judge to allow the trial to proceed when the unsolicited comment was originally made. It is only in hindsight that the trial judge could evaluate the potential effect on the jury of the improper comment. Had there not been such conflict in the testimony of the witnesses, I would consider the comment of the witness to have been harmless.
Cases With Similar Vibessemantic neighbors from the corpus
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Rivera v. State, 745 So. 2d 343 (Fla. 4th DCA 1999)…rial. See, e.g., Czubak v. State, 570 So. 2d 925 (Fla.1990) (witness stated defendant was an escaped convict); Willis v. State, 669 So. 2d 1090, 1093 (Fla. 3d DCA 1996) (police officer testified regarding prior police [*345] contact); Ward v. State, 559 So. 2d 450 (Fla. 1st DCA 1990) (witness stated defendant had been in prison and released). However, in Hamilton v. State, 703 So. 2d 1038 (Fla.1997), the supreme court upheld the denial of a mistrial where a state’s witness testified that the defendant and the…
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Mac Ray Wright v. State, 617 So. 2d 837 (Fla. 4th DCA 1993)…1 So. 2d 1129 (Fla.1986), this court has considered both the permissible evidence on which the jury could have legit [*840] imately relied, and the impermissible evidence which might have improperly influenced the jury verdict. Unlike Ward v. State, 559 So. 2d 450 (Fla. 1st DCA 1990), the evidence conclusively established that appellant did in fact shoot and kill Sandra Ashe. Unlike Cox v. State, 441 So. 2d 1169 (Fla. 4th DCA 1983), the jury was not forced to choose between two competing versions of the truth…
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Clark v. State, 881 So. 2d 724 (Fla. 1st DCA 2004)…ues that because the improper comments came from a witness rather than the prosecutor, reversal is not mandated. Improper comments of a witness which result in prejudice to a defendant, however, may result in reversal of a conviction. Ward v. State, 559 So. 2d 450 (Fla. 1st DCA 1990); Elliott v. State, 590 So. 2d 538 (Fla. 2d DCA 1991). Not every inadvertent comment of a witness will result in a reversal.2 Nevertheless, the circumstances in this case do mandate reversal. The statements by the witness were hig…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. LEE, 531 So. 2d 133 (Fla. 1988)
- Kinchen v. State, 531 So. 2d 133 (Fla. 1988)