SAMUEL LEE NEWKIRK, II, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Samuel Newkirk appeals his conviction for possession of a firearm by a convicted felon, challenging the prosecutor's closing argument, the trial court's response to a jury request for transcripts, and denial of his motion for new trial based on newly discovered evidence. The appellate court affirmed the conviction, finding no error in any of the trial court's actions.
The court held that none of the three grounds warranted a new trial. The prosecutor's comments, even if improper, were not fundamental error since made without objection and were not prejudicial. The trial court did not abuse its discretion in responding to the jury's general request for transcripts. The trial court properly denied the motion for new trial because the proffered evidence was not newly discovered and would not have produced a different result.
[1] Prosecutor's comments during closing argument that do not improperly bolster witness testimony or shift the burden of proof are not grounds for a new trial, especially wh…
[2] A trial court has broad discretion in responding to a jury's request for transcripts of testimony, and denying a general request for all witness transcripts is not an abu…
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 statements which were made without any objection by defense counsel, even if found to be improper, were not so prejudicial as to vitiate the entire trial so as to constitute fundamental error”
Establishes that prosecutor's comments, though potentially improper, do not constitute reversible error absent objection and fundamental prejudice
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNewkirk was convicted by jury of possession of a firearm by a convicted felon. During trial, the jury requested to see transcripts of witness testimon…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Possession Of A Firearm By A Convicted Felon cases and more on FLexlaw
PALMER, J.
Samuel Newkirk appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of possession of a firearm by a convicted felon.1 Newkirk contends that he is entitled to receive a new trial because the prosecutor made improper comments during closing argument, the trial court improperly responded to the jury’s request to see transcripts of the trial testimony, and the trial court abused its discretion when it denied his motion for a new trial based on newly discovered evidence. Finding no error, we affirm.
As for Newkirk’s claim concerning the alleged improper comments made by the prosecutor during closing argument, we disagree with his contentions that the comments improperly bolstered the testimony of the State’s witnesses, or improperly shifted the burden of proof. In addition, the statements which were made without any objection by defense counsel, even if found to be improper, were not so prejudicial as to vitiate the entire trial so as to constitute fundamental error. See Stubbs v. State, 673 So. 2d 964 (Fla. 1st DCA 1996).
Concerning Newkirk’s contention that the trial court abused its discretion in responding to the jury’s request for a transcript of witnesses’ trial testimony, we again disagree. The jury sent out a request to see “the witnesses’ transcripts of testimony.” In response, the trial court instructed the jury that it must “rely upon your recollection and notes regarding the witnesses’ testimony.” Newkirk contends that this response justifies the grant of a new trial because it improperly implied to the jury that it could not request a read back of any part of the witnesses’ testimony. However, defense counsel never requested that the court’s response make reference to a read back. In fact, defense counsel specifically stated: “I understand we don’t want to suggest a read back.” Defense counsel also failed to suggest any alternative to the response given to the jury by the court. The trial court possesses wide discretion when responding to a jury’s request for a read back and in this case the trial court did not abuse its discretion denying a general request for transcripts of all of the witnesses’ testimony. See Coleman v. State, 610 So. 2d 1283 (Fla. 1992).2
As to Newkirk’s motion for new trial based on newly discovered evidence, the trial court did not abuse its discretion in denying that motion. Clark v. State, 379 So. 2d 97 (Fla.1979). The newly discovered evidence which was proffered to the trial court confirmed that the information sought to be introduced was known to Newkirk immediately after the incident took place and therefore, was not newly discovered. In addition, the record supports the trial court’s conclusion that said testimony would not have produced a different result in the outcome of Newkirk’s trial. State v. M.H., 571 So. 2d 562 (Fla. 5th DCA 1990).
Judgment and Sentence AFFIRMED.
SHARP, W., and PLEUS, JJ., concur. . § 775.087(2)(a)l, Fla. Stat. (1997).
. Even if the trial court's response was deemed error, any such error would have been harmless, when viewed in light of all the facts in this case. See §§ 59.041; 924.33, Fla. Stat. (1997); see also State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hill v. State, 932 So. 2d 1117 (Fla. 5th DCA 2006)…ng issues inherent in the testimony, and then applied the test articulated in rule 3.600(a)(3). Because the trial judge applied the correct law, we conclude that we should review this case using an abuse of discretion standard. See Newkirk v. State, 791 So. 2d 1206 (Fla. 5th DCA 2001); Gordon v. State, 744 So. 2d 1112 (Fla. 5th DCA 1999), approved, 780 So. 2d 17 (Fla.2001). In this connection the Florida Supreme Court has noted that if a trial court’s order is supported by competent, substantial evidence, then…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Clark v. State, 379 So. 2d 97 (Fla. 1979)
- Coleman v. State, 610 So. 2d 1283 (Fla. 1992)
- Reinhardt Alexander Stubbs v. State, 673 So. 2d 964 (Fla. 1st DCA 1996)
- State v. M.H., Jr., 571 So. 2d 562 (Fla. 5th DCA 1990)