JEROME HODGES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Hodges appeals his trafficking in cocaine conviction, claiming the trial court erred by denying his motion for mistrial after the state called his codefendant as a witness knowing the codefendant would refuse to testify against him. The court agreed, holding that the state's action prejudiced Hodges and constituted reversible error.
The trial judge abused his discretion by denying the motion for mistrial. The state's action in calling the codefendant knowing he would refuse to testify, combined with the trial court's statements to the jury, prejudiced Hodges and constituted reversible error.
[1] A mistrial should be granted when the state calls a codefendant as a witness, knowing the codefendant will refuse to testify against the defendant, and this action prejud…
[2] A prosecutor's knowledge that a codefendant will not cooperate or testify against the defendant is sufficient to establish that the state knew the codefendant would refus…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We conclude from the record that when the state called the codefendant as a witness it knew he would refuse to testify against appellant. Although the codefendant did not have the right to refuse to testify, the state's action and the trial court's statements prejudiced appellant in the eyes of the jury and constituted reversible error.”
Establishes the court's core holding that the state's knowing action in calling a witness it knew would refuse to testify, combined with prejudicial statements, constitutes reversible error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSeveral days before trial, the state learned that Hodges's codefendant would not cooperate. The state called the codefendant as a witness anyway witho…
The full statement of facts, procedural history, and disposition for this case are member content.
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GARRETT, Judge.
Jerome Hodges appeals his trafficking in cocaine conviction and sentence. He claims that the trial judge should have granted his motion for a mistrial after the state, knowing his codefendant would choose not to testify against him, called the codefendant as a witness. We agree.
Several days before trial, the state learned that the codefendant “wasn’t going to cooperate.” The assigned prosecutor then asked the codefendant’s attorney to “go out and talk to [the codefendant].” The state made no further inquiry before it called the codefendant as a witness. The prosecutor told the trial judge that he only saw the codefendant “briefly” talk to his attorney.
In the presence of the jury, after the codefendant testified as to his name, his present residence, “Rock Road,” and that he was in jail on the same charges, he announced, “I’m only here to say that I’m not going to testify on behalf of the state against my codefendant, Jerome Hodges.” The trial judge then instructed the code-fendant to answer the questions. But the codefendant refused to answer when the prosecutor asked, “Do you recall entering a plea to this charge?” The trial judge then remarked, “[A]s I already said, you’ve entered a plea in this case and, uh, whatever you say cannot be used against you.” The trial judge again instructed the codefend-ant to answer the questions and also threatened him with contempt of court if he refused.
We conclude from the record that when the state called the codefendant as a witness it knew he would refuse to testify against appellant. Although the codefend-ant did not have the right to refuse to testify, the state’s action and the trial court’s statements prejudiced appellant in the eyes of the jury and constituted reversible error. Hankerson v. State, 347 So. 2d 744 (Fla. 4th DCA 1977); see also Richardson v. State, 246 So. 2d 771 (Fla.1971). We hold that the trial judge abused his discretion when he denied appellant’s motion for a mistrial. Cf. Sireci v. State, 587 So. 2d 450 (Fla.1991) (no abuse of discretion demonstrated in denial of motion for mistrial). Accordingly, we reverse appellant’s conviction and sentence and remand for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
POLEN and FARMER, JJ., concur.
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Citator
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Sireci v. State, 587 So. 2d 450 (Fla. 1991)
- Hankerson v. State, 347 So. 2d 744 (Fla. 4th DCA 1977)