BARRY KEENE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Barry Keene was convicted of threatening to place or discharge a destructive device at the Bradenton Herald. The appellate court reversed because the trial court failed to grant a mistrial after a detective's prejudicial testimony about fire bombing and threats, despite a motion in limine limiting such evidence.
The trial court erred in denying the motion for mistrial because the brief limiting instruction was insufficient to overcome the prejudicial effect of the detective's comment regarding fire bombing and threats, and the error cannot be found to be harmless beyond a reasonable doubt.
[1] A mistrial should be granted when a witness's testimony, despite a motion in limine, introduces irrelevant and prejudicial information to the jury, and a curative instruc…
[2] A curative instruction to the jury must be clear and specific to effectively remove the prejudicial effect of inadmissible testimony.
Previewing 2 of 3 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 that the brief instruction that the court gave to the jury was insufficient to overcome the effect of the prejudicial comment.”
Establishes that even with a limiting instruction, the prejudicial testimony about fire bombing and threats could not be cured, requiring reversal.
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Join FLexlaw to unlock all legal intelligenceKeene was charged with threatening to place or discharge a destructive device at the Bradenton Herald newspaper office. Before trial, Keene successful…
The full statement of facts, procedural history, and disposition for this case are member content.
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PARKER, Acting Chief Judge.
Barry Keene appeals the final judgment adjudicating him guilty of threatening to place or discharge a destructive device. We reverse because the trial court erred in failing to grant a mistrial.
The state filed an information charging Keene with threatening to place or discharge a destructive device at the newspaper office of the jBradenton Herald, in violation of section 790.162, Florida Statutes (1993). Before trial, Keene filed a motion in limine requesting the exclusion of any testimony concerning any threats or threatening letters other than the threat to the Bradenton Herald contained in the information. The trial court granted the motion.
During direct examination, the state asked Detective Sparks if he recalled Keene expressing that he disliked the Herald. Sparks stated: “I guess he had been in the paper, from what I remember him saying, about an incident that happened earlier, about a fire bombing or some threats.... ” Thereafter, the defense objected and moved for a mistrial. The court denied the motion and in- strueted the jury as follows: “Any reasons stated by the Defendant for being upset at the Bradenton Herald are not relevant to this case and should not be considered by the Jury. Therefore, the Jury is instructed to disregard 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 clarify that the fire bombing had been directed at Keene, and not at the Herald, or whether the paper had accused Keene of being involved with the threat or fire bombing. Therefore, we are compelled to reverse because we cannot say that this comment was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Reversed and remanded.
LAZZARA and NORTHCUTT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Elliott v. State, 590 So. 2d 538 (Fla. 2d DCA 1991)