ANTHONY ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In a trial for possession of a firearm by a convicted felon, the court reversed the conviction because the trial court impermissibly admitted a mug shot to refresh an eyewitness's failing recollection and admitted a prejudicial photo of the defendant's injured girlfriend to corroborate her hysterical state, both violating evidentiary principles.
The court reversed, holding that use of a single mug shot was impermissibly suggestive under evidentiary law and that the hospital photo's minimal or nonexistent probative value was substantially outweighed by its prejudicial effect, as the hysterical state was already adequately established by other testimony.
[1] The admission of a photograph depicting a victim's battered condition is impermissibly prejudicial when its probative value is minimal and other evidence already establis…
[2] The use of a single mug shot to refresh a witness's recollection is impermissibly suggestive when the witness is unable to identify the defendant in court.
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“The use of the single photograph, however, to 'refresh' the recollection of the witness was simply too suggestive.”
Establishes that the trial court's use of a mug shot to refresh eyewitness memory constituted impermissible suggestion.
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Join FLexlaw to unlock all legal intelligenceAnthony Roberts was tried for possession of a firearm by a convicted felon. An eyewitness was unable to identify Roberts in court. The prosecution sho…
The full statement of facts, procedural history, and disposition for this case are member content.
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FARMER, J.
In this trial for possession of a firearm by a convicted felon, the trial court was asked by the prosecution to show a mug shot of defendant to an eyewitness who was unable to identify defendant in court. The trial court permitted the state to use the single photo to refresh the failing recollection of the witness. In the same trial, the trial court also allowed the state to ask this same witness to identify a photo of defendant’s girlfriend, depicting her lying in a hospital bed after a beating. The trial court permitted both the identification and the admission of the photo, concluding that its probative value outweighed any prejudice. We reverse on both issues.
Turning to the last issue first, the state argues that the photo of the girlfriend was relevant even though its admission related to no element of the crime charged. The argument is that it would corroborate the testimony of the eyewitness that the girlfriend was hysterical. Her state of mind was relevant, it is contended, to the contention that her “excited utterance” to the eyewitness that her assailant had a gun should be admitted. We reject this argument. There was already substantial testimony in the record from at least four witnesses that the girlfriend was hysterical, thereby establishing the necessary predicate for the excited utterance of the girlfriend. Any slight probative value — and it is doubtful that there was even a slight value — was clearly overcome by the substantial prejudice of showing her battered condition.
We also find the use of the mug shot impermissibly suggestive. Here the eyewitness was simply unable to identify defendant at trial. The state wanted to show that she had identified defendant from the mug shot at the time of the events in the case. The use of the single photograph, however, to “refresh” the recollection of the witness was simply too suggestive. See Way v. State, 502 So. 2d 1321 (Fla. 1st DCA 1987) (use of single photograph one of most suggestive identifications possible and impermissibly suggestive under most circumstances).
REVERSED FOR NEW TRIAL.
WARNER, C.J., and SHAHOOD, J., concur.
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Newton v. State, 237 So. 3d 386 (Fla. 4th DCA 2018)…charged offense beyond a reasonable doubt. See Akridge v. State, 970 So. 2d 917, 918 (Fla. 2d DCA 2007); Ponsell v. State, 393 So. 2d 635, 636 (Fla. 4th DCA 1981). This court has decided an issue similar to the one at hand. See Roberts v. State, 778 So. 2d 512 (Fla. 4th DCA 2001). In Roberts, the prosecution attempted “to show a [booking photograph] of defendant to an eyewitness who was unable to identify defendant in court.” Id. at 513. The trial court ---PAGE 3--- 3 allowed the prosecution to use…
Authorities Cited
- WAY v. State, 502 So. 2d 1321 (Fla. 1st DCA 1987)