SAMUEL NEWTON MCCALLISTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Samuel McCallister was convicted of aggravated assault with a deadly weapon after threatening his neighbor with a machete. The Florida appellate court reversed his conviction, finding that the trial court erred in admitting a highly prejudicial racial slur statement made by McCallister 45 minutes after the incident, as its probative value was substantially outweighed by its prejudicial effect.
The court reversed the conviction, concluding that the trial court erred in admitting the statement because its probative value was far outweighed by the prejudice to McCallister, and the error was not harmless given that the victim was the only eyewitness to testify at trial.
[1] A trial court's pre-trial ruling on a motion in limine is tentative and may be revisited during trial.
[2] A statement made subsequent to an incident, and removed in time from the event, has little probative value as to motive.
Previewing 2 of 5 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“a trial court's pre-trial ruling on a motion in limine is tentative because the shifting sands of the trial in progress may cause a trial judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case”
Establishes that motions in limine rulings are not final and may be reconsidered during trial
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Join FLexlaw to unlock all legal intelligenceMcCallister had an argument with his neighbor, became enraged, obtained a machete, approached the neighbor while armed, and threatened to kill him. Th…
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SAWAYA, J.
Samuel McCallister appeals from a judgment of the trial court finding him guilty of aggravated assault with a deadly weapon. McCallister argues, inter alia, that the trial court erred in admitting testimony regarding an unduly prejudicial statement made by McCallister. We reverse.
An argument ensued between McCallis-ter and his neighbor. McCallister became enraged, entered his apartment, obtained a machete, proceeded back outside and, with the weapon in hand, approached the neighbor and threatened to kill him. The frightened neighbor retreated to his home and telephoned the police, who came to the scene and arrested McCallister. The issue is whether the trial court erred in admitting a statement McCallister made as he was being transported to jail after his arrest. He stated, “That nigger is dead; when I get out, he better hope I never get out.” The trial court granted a pre-trial motion in limine that prohibited the State from admitting this statement, but reversed its decision during the trial. A trial court’s pre-trial ruling on a motion in limine is tentative because the shifting sands of the trial in progress may cause a trial judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. See Donley v. State, 694 So. 2d 149 (Fla. 4th DCA 1997); Blackburn v. State, 314 So. 2d 634 (Fla. 4th DCA 1975).
Here, when the trial judge initially granted the motion in limine, he stated that he was unable to weigh the probative value versus the prejudicial effect of the evidence because he had not heard any evidence. After the deputy who heard the statement testified, however, the State proffered the statement and the trial court reversed its initial ruling and allowed the statement.
We conclude that the initial ruling was correct and that admitting the statement was error because the statement’s probative value is far outweighed by the prejudice to McCallister. See Carrillo v. State, 727 So. 2d 1047 (Fla. 2d DCA 1999). First, as in Carrillo, the prejudicial statement was made subsequent to the initial incident. In fact, the arrest was made approximately 45 minutes after the incident. Because the statement was so far removed in time from the incident, it had very little probative value as to McCallister’s motive. Moreover, the only witness to testify regarding the statement, over objection, was the deputy. At trial, the deputy testified that he was unable to ascertain the exact quote, despite it being recorded, because when he replayed the tape all he could hear was wind, which was caused by open windows on the squad car. The statement, therefore, was reproduced by the deputy based solely upon his memory after transporting McCallister to jail. We further conclude that the trial court’s determination to allow the highly prejudicial statement was not harmless error because it could have been the difference between conviction and acquittal, especially in light of the fact that the victim was the only eyewitness to the commission of the crime who testified at trial. See Gore v. State, 719 So. 2d 1197 (Fla.1998).
Accordingly, we reverse the conviction and sentence and remand for a new trial.1
REVERSED and REMANDED for a new trial.
COBB and PLEUS, JJ., concur. . We note that McCallister's oral motion to suppress was denied as being untimely. See Powell v. State, 717 So. 2d 1050 (Fla. 5th DCA 1998). Given our disposition, it is unnecessary for this court to address the propriety of this ruling. Suffice it to say on remand McCallister is not precluded from raising a motion to suppress which comports with the dictates of Florida Rule of Criminal Procedure 3.190.
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Citator
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Rich v. State, 18 So. 3d 1227 (Fla. 4th DCA 2009)…ubans,” defendant blatantly exploited phrase by taking phrase out of context, disparaging plaintiff principal’s character, and focusing entire cross-examinations on the phrase, thereby exacerbating phrase’s prejudicial impact); McCallister v. State, 779 So. 2d 615, 615-16 (Fla. 5th DCA 2001) (error to admit defendant’s statement “That nigger is dead” during jail transport forty-five minutes after incident). As the Third District noted in MCI, “the introduction into evidence of a racial or ethnic slur is not…
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Thornton v. State, 852 So. 2d 911 (Fla. 3d DCA 2003)…and 3. most serious of all, the rule which forbids even a prosecutorial intimation, let alone the direct accusation that the defendant used a despicable racial slur. See Echemendia v. State, 735 So. 2d 555 (Fla. 3d DCA 1999); McCallister v. State, 779 So. 2d 615 (Fla. 5th DCA 2001); Perez v. State, 689 So. 2d 306 (Fla. 3d DCA 1997). No trial which contains a statement like this may be permitted to stand. II. As a completely separate matter, the state’s final argument, just as the one it made to a separat…
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Stephenson v. State, 31 So. 3d 847 (Fla. 3d DCA 2010)…(characterizing as unfairly prejudicial, plaintiff CEO’s reference to “Goddamn Cubans,” which defendant exploited by taking phrase out of context, disparaging CEO’s character, and exacerbating the phrase’s prejudicial impact); McCallister v. State, 779 So. 2d 615, 615-16 (Fla. 5th DCA 2001) (concluding that it was error to admit defendant’s statement “[t]hat n-r is dead; when I get out, he better hope I never get out,” made during transport after arrest); DeFreitas v, State, 701 So. 2d 593, 601 (Fla. 4th DCA…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gore v. State, 719 So. 2d 1197 (Fla. 1998)
- Harlan A. Blackburn v. State, 314 So. 2d 634 (Fla. 4th DCA 1975)
- Donley v. State, 694 So. 2d 149 (Fla. 4th DCA 1997)
- Carrillo v. State, 727 So. 2d 1047 (Fla. 2d DCA 1999)
- Powell v. State, 717 So. 2d 1050 (Fla. 5th DCA 1998)