JOHN A. ELLIOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in denying the appellant's motion for a mistrial because a cautionary instruction was insufficient to overcome the prejudicial effect of the witness's comment.
During the cross-examination of a confidential informant, the informant stated that the appellant 'just sells his drugs there.' Defense counsel object…
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PATTERSON, Judge.
John A. Elliott appeals from his judgment and sentence for trafficking in cocaine. He raises two arguments on appeal. We find merit in his second argument that the trial court erred in denying his motion for a mistrial.
The appellant was brought to trial before a jury on charges of trafficking in more than twenty-eight grams but less than 200 grams of cocaine in violation of section 893.135(l)(b)(l), Florida Statutes (1985). The charges were the result of a drug transaction involving the appellant, his co-defendant, a confidential informant and two undercover detectives from the Sarasota Police Department.
As part of the state's case in chief, the prosecutor called the confidential informant to testify. During cross-examination by defense counsel, the following colloquy occurred: Q Is it your testimony that you knew John for two years?
A Yes.
Q And he’s a resident of the same area that you live; is that correct?
A No, he just sells his drugs there.
Defense counsel objected to the testimony and moved for a mistrial. He argued that the spontaneous comment suggesting that the appellant had a history of dealing in drugs was prejudicial to the appellant’s defense. The trial court denied the motion and instructed the jury to disregard the comment.
The trial court erred in denying the appellant’s motion for a mistrial. A cautionary instruction was insufficient to overcome the incurable effect of the witness’ prejudicial comment. See Bradwell v. State, 468 So. 2d 1113 (Fla. 3d DCA 1986); Long v. State, 407 So. 2d 1018 (Fla. 2d DCA 1981).
Therefore, we reverse and remand to the trial court for a new trial.
SCHOONOVER, C.J., and CAMPBELL, J., concur.
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Abbott v. State, 622 So. 2d 601 (Fla. 2d DCA 1993)…ury to “disregard the last question and answer.” We hold that this curative instruction was ineffective to overcome the prejudicial effect of the implication that the appellant was involved in other, more serious drug activity. See Elliott v. State, 590 So. 2d 538 (Fla. 2d DCA 1991). Similar fact evidence is admissible if relevant to a fact in issue even though it also points to the commission of a separate crime, but evidence of other crimes is inadmissible where its sole relevancy is to attack the characte…
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Clark v. State, 881 So. 2d 724 (Fla. 1st DCA 2004)…ness 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 highly inflammatory; the statements were made under oath…
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Keene v. State, 689 So. 2d 1176 (Fla. 2d DCA 1997)…isregard the part of the last answer that referred to supposed reasons for being upset.” We conclude that the brief instruction that the court gave to the jury was insufficient to overcome the effect of the prejudicial comment. See Elliott v. State, 590 So. 2d 538 (Fla. 2d DCA 1991). The state argues that Detective Sparks was talking about a fire that was at Keene’s own home and that it had nothing to do with threats to a third individual. While that may be true, the trial judge’s instructions did not clari…
Authorities Cited
- Bradwell v. State, 468 So. 2d 1113 (Fla. 3d DCA 1985)
- Sermons v. State, 407 So. 2d 1018 (Fla. 2d DCA 1981)
- Long v. State, 407 So. 2d 1018 (Fla. 2d DCA 1981)