JOHNNY MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2002-01-23
No. 3D00-543
Before GREEN, SHEVIN and RAMIREZ, JJ.
804 So. 2d 609 Florida District Court of Appeal, Third District (2002) Positive Treatment
Cited by 9 cases

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Holding

The court held that the trial court abused its discretion by allowing the prosecutor to elicit and emphasize evidence of the defendant's prior incarceration for similar crimes, which prejudiced the defendant's right to a fair trial.


Headnotes

[1] Evidence of prior arrests for similar crimes is inadmissible to prove propensity.

[2] A prosecutor's cross-examination focusing on a defendant's prior arrests for similar crimes, over objection, constitutes an abuse of discretion when the defense is not at…

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Facts & Procedural History

The defendant was convicted of robbery, carjacking, and burglary with an assault. At trial, the defense attempted to establish that the defendant was …

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Opinion of the Court
SHEVIN, Judge.

SHEVIN, Judge.

Johnny Miller appeals convictions and sentences for robbery, carjacking and burglary with an assault. We reverse and remand for a new trial.

The events leading to the charges against Miller were disputed. The victims asserted Miller robbed them. However, the credibility of the principal witness was severely impeached. Miller testified that he knew one victim’s boyfriend, a marijuana dealer. The boyfriend asked Miller to serve as a go-between for the victim in a marijuana sale. Miller testified that the marijuana was poor, and the sale went bad; he left the victims there and walked away. He guessed the buyers robbed the victims.

At trial, defense counsel attempted to establish Miller’s familiarity with drug transactions to substantiate the defense theory that Miller was approached to be the sale middleman. Counsel asked Miller to describe the transaction:

Q. So now you get to the house— A. Yes, sir. Q. —and what happens at that house? Let me ask you this. Why that particular house? A. Because they sell drugs on the street. Right here they sell drugs on both sides of the street. Q. And do you know the people there? A. I don’t know them personally, but, you know, I stay on the street and I see them every day, you know, coming and going. Q. Have you been involved in drug sales before yourself? A. Yeah, I have sold drugs before, sure. Q. In fact, you’ve been arrested and convicted for that before, haven’t you? A. Yes, sure. Q. So you know where to go to do this kind of thing? A. Yes, sir. Q. And you took [the victim] there? A. Yes, sir. [T-487-88] Thereafter, over defense counsel’s objection, the court permitted the prosecutor to elicit, and amply emphasize to the jury, that Miller had been incarcerated on charges of robbery and burglary, just as in the case at trial.1 This evidence of similar crimes was brought in, as demonstrated by the prosecutor’s insistence and emphasis, to show defendant’s propensity to commit crimes. The court abused its discretion in permitting this evidence. Chambers v. State, 742 So. 2d 839, 840 (Fla. 3d DCA 1999); Adams v. State, 743 So. 2d 1216, 1217 (Fla. 4th DCA 1999).

The state asserts that this questioning was an appropriate response to the defense’s attempts to cloud the issue of Miller’s previous convictions. This argument is unavailing. As a threshold matter, the prosecutor’s questions were not about prior convictions, but rather focused specifically on a prior arrest. The line of questioning does not support the state’s assertion that it was setting the record straight on Miller’s convictions.

This case does not present the scenario in Fotopoulos v. State, 608 So. 2d 784 (Fla.1992), and McCrae v. State, 395 So. 2d 1145 (Fla.1980), where defense counsel’s questions were construed as subtle or tactful attempts to downplay and minimize prior convictions. Miller’s defense counsel was attempting to establish a background to prove the defense theory, i.e., that Miller was merely a go-between and had not com mitted the charged offenses. This does not justify the state’s offensive cross-examination.

The result of the trial court’s improvident overruling of defense counsel’s objections was that the prosecutor emphasized to the jury that Miller had been in jail before, and that the incarceration was as a result of similar crimes. This prejudiced defendant’s entitlement to a fair trial. Contrary to the state’s protestations, the court’s error was not harmless. As the Court stated in Czubak v. State, 570 So. 2d 925, 928 (Fla.1990), “erroneous admission of collateral crimes evidence is presumptively harmful. Error is only harmless ‘if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.’ ” (Citations omitted). That is not the case here.

We are therefore required to reverse the convictions and remand the matter for a new trial.

This disposition makes it unnecessary to reach the remaining issues defendant raises on appeal.

Reversed and remanded.

. The objectionable line of questioning follows:

A.... All I know I was supposed to take marijuana, get the marijuana from [the victim] and take it on to the next street where they sell dope at and sell it for her. [Prosecutor] Q. Do you they [sic] know Jeff Lewis? A. No, I don't know, sir. Q. They don't know anything abut this thing you were working on, do they? A. I don't know, sir. Q. Why don't you tell the jury about that. You were in jail. Right? A. Yes. Q. What were you in jail for? A. I was in jail for— [Defense counsel]: Objection, relevance. The Court: Overruled. The witness: I was in jail for — I was acquitted on some charges. [Prosecutor] Q. What were you in jail for? A. If you give me a minute, sir, I’ll answer the question. Q. The question was what were you in jail for? A. I was acquitted for— Q. No. What were you in jail for? After discussion on defense objections, the questioning continued: [Prosecutor] Q. What were you in jail for? A. I was acquitted for— Q. No. Please. What were you in jail for? A. I was in jail at that time for several charges. Q. Tell me what they were. A. Strong armed robbery. Q. Just like this case. Right? [Defense counsel]: Objection. The Court: Overruled. [Prosecutor] Q. Just like this case. Right? A. And burglary with an assault. Q. And burglary with an assault? A. Uh-huh. Q. Just like this case? A. Yes, sir. [T 531-33]

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Citator

Cited By

  • McCALL v. State, 941 So. 2d 1280 (Fla. 4th DCA 2006)
    …ssex, 917 So. 2d at 956 (citing LaMarca v. State, 785 So. 2d 1209, 1212 (Fla.2001)). “The erroneous admission of collateral crimes evidence is presumptively harmful.” Ross v. State, 913 So. 2d 1184, 1188 (Fla. 4th DCA 2005) (citing Miller v. State, 804 So. 2d 609, 612 (Fla. 3d DCA 2002) (quoting Czubak v. State, 570 So. 2d 925, 928 (Fla.1990))). “Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Bozeman v. State, 698 So. 2d 629, 631…
  • Ross v. State, 913 So. 2d 1184 (Fla. 4th DCA 2005)
    …achment. Based on our review of the record, we cannot say that these errors were harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986). The erroneous admission of collateral crimes evidence is presumptively harmful. See Miller v. State, 804 So. 2d 609, 612 (Fla. 3d DCA 2002) (quoting Czubak v. State, 570 So. 2d 925, 928 (Fla.1990)). For the reasons stated above, we reverse appellant’s conviction and sentence for attempted robbery and burglary and remand for a new trial. We affirm the order revok…
  • Everton Baker v. State, 102 So. 3d 756 (Fla. 4th DCA 2012)
    …not say “that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986). The erroneous admission of collateral crimes evidence is presumptively harmful. See Miller v. State, 804 So. 2d 609, 612 (Fla. 3d DCA 2002) (quoting Czubak v. State, 570 So. 2d 925, 928 (Fla.1990)). Baker also appeals his conviction because the trial court refused to give an instruction informing the jury that Baker could be convicted of a lesser included offens…

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