JERRY NEIL ALFRED, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jerry Neil Alfred appeals his conviction for second degree murder with a firearm. The Third District Court of Appeal affirmed the conviction, rejecting Alfred's arguments regarding witness testimony, cross-examination limitations, and curative jury instructions.
The court affirmed the conviction on all issues: (1) the point regarding Font's testimony was not preserved below and the testimony was proper under Lay v. Kremer; (2) even assuming error in limiting cross-examination regarding the photo line-up, it was harmless beyond a reasonable doubt because Font knew Alfred well and identified him in court; and (3) the trial court's curative instruction was sufficient and within the court's discretion.
[1] A defendant's argument regarding inflammatory testimony is not preserved for appeal if no objection was made at trial.
[2] A witness may testify to the exact words spoken by another witness, even if those words are inflammatory, if the testimony is otherwise proper.
Previewing 2 of 4 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“We affirm on this issue because the point was not preserved below. The transcript indicates that the comment about which Alfred complains was not objected to.”
Establishes that preservation of error is required for appellate review of alleged inflammatory testimony.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAlfred was charged with second degree murder following the shooting of victim Peter Delgado. At trial, the prosecution presented testimony from Tina C…
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PER CURIAM.
Jerry Neil Alfred appeals his conviction for the offense of second degree murder with a firearm. We affirm.
Defendant-appellant Alfred was charged with second degree murder following the shooting of victim Peter Delgado. At trial the State’s witnesses included Tina Crews, Delgado’s girlfriend, who witnessed the initial altercation between Alfred and Delgado, and Carmen Font, who heard Crews’ statements about the shooting immediately following the incident.
Alfred argues that he was prejudiced by Font’s testimony as to Crews’ reaction immediately after the shooting because the testimony included the use of inflammatory terms. We affirm on this issue because the point was not preserved below. The transcript indicates that the comment about which Alfred complains was not objected to. Even if the comment had been objected to, the witness’ testimony was proper under Lay v. Kremer, 411 So. 2d 1347, 1348 (Fla. 1st DCA 1982). Witness Font simply repeated the exact words of witness Crews.
Alfred also argues that he was unfairly hampered in his cross-examination of Font regarding what he believes was an unfairly suggestive photo line-up pursuant to which Font identified him. Assuming for purposes of discussion that the trial court did err in limiting the cross-examination of Font, the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Witness Font knew Alfred well, had known him for three to four years and identified him in court. This is not a case of witness identification of a stranger nor a case in which any irregularity in the photo line-up (assuming such occurred) could plausibly have had any effect on the witness’ identification of defendant.
Finally, the defendant claims he was prejudiced by the trial court’s rulings regarding a part of Crews’ testimony. We do not agree. The transcript shows that the trial court sustained defendant’s objection to Crews’ statement that she told the victim to “leave these kids [including defendant] alone because they were dangerous.” The trial court also instructed the jury to disregard that statement. The determination that the curative instruction was sufficient and the denial of defendant’s motion for mistrial were within the trial court’s discretion. See Goodwin v. State, 751 So. 2d 537, 546-47 (Fla.1999).
Affirmed.
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Cited By
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Alfred v. Dixon (S.D. Fla. 2023)…ize the relevant factual and procedural history of Alfred’s case: In 2001, Alfred was convicted of second-degree murder and was sentenced to life imprisonment. Alfred’s conviction and sentence were affirmed on direct appeal. [See Alfred v. State, 935 So. 2d 72, 73 (Fla. 3d DCA 2006)]. In 2007, Alfred filed his first 28 U.S.C. § 2254 petition [in Case No. 07-21974-CIV], challenging his 2001 second-degree murder conviction. The district court denied the petition on the merits. This Court then denied Alf…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Donesta LAY and Larry Lay v. Kremer, 411 So. 2d 1347 (Fla. 1st DCA 1982)