MARQUIS BERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marquis Berry was convicted of resisting arrest with violence and appealed, arguing the trial court should have granted his mistrial motion after the prosecutor made comments during jury selection that could have prompted jurors to infer Berry was a convicted felon based on his appearance. The appellate court affirmed the conviction, finding the prosecutor's remark harmless error because it did not directly suggest Berry was a felon.
The court affirmed the conviction, holding that the prosecutor's remark was harmless error because it did not directly suggest the appellant was a convicted felon and any such conclusion could only have been drawn by inference and speculation. The court also addressed preservation of error, noting that while the objection may not have been renewed as required by Joiner v. State, the issue was reviewable under current law.
[1] A prosecutor's comment during jury selection, even if not intended to prejudice the defendant, can result in a violation of constitutional rights and necessitate a new tr…
[2] A motion for mistrial made during jury selection must be renewed at the close of jury selection to preserve the issue for appeal, even if the objection does not involve a…
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“All counsel are under a duty to refrain from improper comments, but prosecutors must be extra vigilant, because their comments can unintentionally result in a violation of a defendant's constitutional rights which carry a high risk of necessitating a new trial.”
Establishes the heightened standard for prosecutor conduct during trial, particularly regarding jury selection comments.
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Join FLexlaw to unlock all legal intelligenceBerry was convicted of resisting arrest with violence. During jury selection, the prosecutor made comments about how people judge others by appearance…
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KLEIN, J.
Appellant was convicted of resisting arrest with violence and raises one issue on appeal. He argues that the trial court should have granted his motion for mistrial after the prosecutor made the following comment during jury selection: Okay. Now, let me let you think about this. Many of us have pre-dispositions in life. We see someone with blue jeans hanging on, gold teeth, earring, many of us say, “can’t that person pull up their pants?” “What’s up with the gold teeth and earring?”
Then we see people with three-piece suits on and we say, wow. But let me remind you that convicted felons — our presidents walk around in jogging shorts and T-shirts. Do not judge a book by its cover. Appellant objected and argued that, as the only witnesses in his case would be police officers and appellant was well dressed, the jurors could infer that appellant was a convicted felon from this statement.
We are confident that the prosecutor in this case did not intend to send such a message; however, we see far too many appeals in which the sole issue raised is a comment by a prosecutor. All counsel are under a duty to refrain from improper comments, but prosecutors must be extra vigilant, because their comments can unintentionally result in a violation of a defendant’s constitutional rights which carry a high risk of necessitating a new trial.
The state argues that even though the appellant moved for a mistrial at the time the remarks were made, the issue was not preserved under Joiner v. State, 618 So. 2d 174 (Fla.l993)(requiring an objection involving a juror, which has been overruled, to be renewed at the end of jury selection). This court has applied the principle of Joiner where the trial court imposed time limitations on voir dire, but the objection to the limitation was not renewed prior to the defendant affirmatively accepting the jury. Green v. State, 679 So. 2d 1294 (Fla. 4th DCA 1996). It has been applied by the fifth district in circumstances similar to this case. Barnette v. State, 768 So. 2d 1246 (Fla. 6th DCA 2000).
Although the objection in this case did not involve the selection of a juror, as Joiner did, the motion for mistrial was the equivalent of a motion to strike all of the prospective jurors and start anew. The rationale of Joiner, which is that things change, and the jury may have become acceptable to the objecting party by the time the jurors are sworn, is applicable here.
The wisdom of extending the preservation rule of Joiner, in which the defendant announced that the jury was acceptable to him at the end of voir dire, to cases in which there was no such announcement, Mitchell v. State, 620 So. 2d 1008 (Fla.1993), has been questioned,1 but under the current state of the law counsel would be well-advised to renew all objections made during the selection of the jury, before the jury is sworn. Salama v. McGregor, 656 So. 2d 215 (Fla. 5th DCA 1995)(Griffin, J., dissenting).
As to the merits, we find that the remark, which did not directly suggest that the appellant was a convicted felon, was harmless. As appellant acknowledged in the trial court, the conclusion that appellant was a convicted felon could only have been drawn by inference and speculation. We therefore affirm.
WARNER and SHAHOOD, JJ., concur. . Saloma v. McGregor, 656 So. 2d 215 (Fla. 5th DCA 1995)(Griffin, J., dissenting); Milstein v. Mut. Sec. Life Ins. Co., 705 So. 2d 639, 641 (Fla. 3d DCA 1998)(Sorondo, J., specially concurring).
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Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005)…motions.” Id. . Although Joiner involved peremptory challenges under State v. Neil, 457 So. 2d 481 (Fla.1984), this court, along with other district courts of appeal, has applied the Joiner holding to jury selections generally. See Berry v. State, 792 So. 2d 611 (Fla. 4th DCA 2001); Couch v. Dunn Ave. Shell, Inc., 803 So. 2d 803 (Fla. 1st DCA 2001); Gootee v. Clevinger, M.D., 778 So. 2d 1005 (Fla. 5th DCA 2000); Johnson v. State, 763 So. 2d 1214 (Fla. 2d DCA 2000); Milstein v. Mut. Sec. Life Ins. Co., 705 S…
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Couch v. Dunn Ave. Shell, Inc., 803 So. 2d 803 (Fla. 1st DCA 2001)…s logic solely to situations involving Neil challenges. Id. We find Milstein persuasive. Accordingly, we join the Milstein court and other Florida appellate courts in holding that Joiner is not confined to the Neil context. See also Berry v. State, 792 So. 2d 611 (Fla. 4th DCA 2001); Gootee v. Clevinger, M.D., 778 So. 2d 1005 (Fla. 5th DCA 2000); and Johnson v. State, 763 So. 2d 1214 (Fla. 2d DCA 2000). Thus, for the reasons discussed, we find that Couch has failed to preserve for appellate review the allege…
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Aragon v. State, 853 So. 2d 584 (Fla. 5th DCA 2003)…in v. State, 816 So. 2d 187, 188 (Fla. 5th DCA 2002) ("Jury selection issues are deemed waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objections [sic].”); see also Berry v. State, 792 So. 2d 611 (Fla. 4th DCA 2001); Gootee v. Clevinger, 778 So. 2d 1005 (Fla. 5th DCA 2000), review denied, 794 So. 2d 603 (Fla.2001); Barnette v. State, 768 So. 2d 1246 (Fla. 5th DCA 2000). . Aragon does not allege that he has reason to believe that the juror w…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Joiner v. State, 618 So. 2d 174 (Fla. 1993)
- Mitchell v. State, 620 So. 2d 1008 (Fla. 1993)
- Milstein v. Mut. Sec. Life Ins. Co., 705 So. 2d 639 (Fla. 3d DCA 1998)
- Barnette v. State, 768 So. 2d 1246 (Fla. 5th DCA 2000)
- Green v. State, 679 So. 2d 1294 (Fla. 4th DCA 1996)
- Rivers v. Dep't of Health & Rehabilitative Servs., 679 So. 2d 1294 (Fla. 5th DCA 1996)
- Salama v. McGREGOR, 656 So. 2d 215 (Fla. 5th DCA 1995)