JACK L. MIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Mims was convicted of breaking and entering with intent to commit a misdemeanor after being arrested in an apartment. On appeal, he challenged the warrantless entry, the validity of arrests for misdemeanors, and prosecutorial statements suggesting uncontroverted evidence. The court reversed and remanded for a new trial due to prosecutorial error.
The warrantless entry was lawful because consent was obtained, and the arrests were not unlawful. However, the prosecutor committed reversible error by arguing that evidence was "uncontroverted" when the defendant did not testify and could have challenged the police detective's testimony.
“but he (referring to Police Detective Mein) told you right here, and it's uncontroverted before you right now, that these defendants told him right there at that time freely and voluntarily that they committed this crime.”
The prosecutor's improper statement that evidence was "uncontroverted" which the court found constituted reversible error
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Join FLexlaw to unlock all legal intelligencePolice officers entered an apartment after being invited in. They observed two unmarried couples in a state of undress and arrested Mims and a codefen…
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Appellant was charged with breaking and entering with intent to commit a misdemeanor, tried by jury and found guilty.
The Appellant and William B. Osgood, Fla.App., 192 So.2d 64 were arrested by the St. Petersburg police in an apartment, entrance to which is questioned, the charge was disorderly conduct and minor in possession of alcoholic beverage. The Defendant was taken to the city jail and subsequently arrested for breaking and entering with intent to commit a misdemeanor.
Appellant poses two questions in his appeal :
I. Whether the entry of Defendant’s residency by police officers without warrants and the subsequent arrests of Defendant for misdemeanors were in reality mere excuses for the conducting of a general exploratory search for evidence of a crime and whether such arrests were improper and such search unreasonable.
II. Whether the Prosecutor’s statement that evidence against the Defendant was “uncontroverted” was prejudicial error where Defendant did not testify.
As to the entry of the Defendant’s apartment, the entry was made by a police officer knocking at the door and being invited to “come in”. Under the facts of this case this entry was lawful.
As to the subsequent arrest for disorderly conduct by the police officer who personally knew three of the occupants of the apartment, and observed a violation of the law in that two couples, not married, were in a state of undress together in the apartment. We do not find this arrest unlawful.
As to Appellant’s contention that the entry and arrest were in reality excuses for a general exploratory search for evidence of a crime, we find that the witness Susan Meadows, an eighteen year old married woman, testified that she was living in the apartment with the Defendant, although he was not her husband and that Lynn Reaves, the other minor girl, also shared the apartment with the Co-defendant, William Osgood, and that both girls consented to the subsequent search of the apartment, which disclosed the evidence introduced at the trial.
*64As to point two, the Prosecuting Attorney, in his argument to the jury stated:
“but he (referring to Police Detective Mein) told you right here, and it’s un-controverted before you right now, that these defendants told him right there at that time freely and voluntarily that they committed this crime. You didn’t hear any comments or any question to * * * you didn’t hear any question to Detective Mein as to whether hs thought those defendants were lying when they made that statement.”
In the presentation before this Court, the State concedes that error was committed .and this Court does so find. Kolsky v. State, Fla.App., 182 So.2d 305; Singleton v. State, Fla.App., 183 So.2d 245.
Reversed and remanded for new trial.
ALLEN, C. J., and PIERCE, J., concur.
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Citator
Cited By
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Osgood v. State, 192 So. 2d 64 (Fla. 2d DCA 1966)…e. Appellant-Defendant below brings this appeal from judgment and sentence pursu [*65] ant to a jury verdict of guilty of the crime of breaking and entering with intent to commit a misdemeanor. This is a companion case with Mims v. State, Fla.App., 192 So. 2d 62, which is being reversed for a new trial, and the facts are similar with the exception that in this case, the attorney for this Defendant was not permitted to cross examine a proffered witness out of the presence of the jury! Also, the Defendant’s a…
Authorities Cited
- Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)
- Kolsky v. State, 182 So. 2d 305 (Fla. 2d DCA 1966)
- Osgood v. State, 192 So. 2d 64 (Fla. 2d DCA 1966)