SPENCER SAMUEL JONES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Spencer Jones appeals his robbery conviction, arguing that the prosecutor's opening statement improperly referenced mug shots, implying prior criminal involvement, and that the evidence was insufficient to prove guilt. The court found the mug shot reference prejudicial error and reversed for a new trial.
The prosecutor's reference to mug shots was prejudicial error because it conveyed to the jury that appellant had committed prior crimes or had prior police involvement. The defendant's subsequent testimony denying prior convictions did not cure the prejudicial effect of the prosecutor's initial remarks. The conviction is reversed and remanded for a new trial.
“a reference to a 'mug shot' of a defendant by a State's witness in a criminal trial was prejudicial error as implying a prior criminal conviction”
Establishes the legal principle that mug shot references are inherently prejudicial as they imply prior criminal history
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Join FLexlaw to unlock all legal intelligenceJones was convicted of robbery by jury verdict. During opening statements, the prosecutor stated that police obtained a photograph of the defendant an…
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Appellant seeks review of his conviction of robbery following the finding of guilty-by the jury. He has presented two points, for review. I. It was prejudicial error for the State Prosecutor in his opening statement to the jury to say “Nevertheless, the-police got a picture of the defendant in this case and mixed it in with a bunch, a whole-bunch of others, lets say ten or twelve-other mug shots”. II. Whether the evidence as a matter of law was sufficient to. establish the appellant guilty of the offense of robbery.
The general rule which has been-adopted and adhered to in this jurisdiction is that collateral evidence that tends to suggest the commission of an independent crime is inadmissible unless such evidence is - relevant to a fact in issue, in which event it may be admissible even though it points to-the commission of another crime. See-*25Jordan v. State, Fla.App.1965, 171 So.2d 418; Wilson v. State, Fla.App.1965, 171 So.2d 903. Cf. Williams v. State, Fla.1959, 110 So.2d 654.
Webster’s Third International Dictionary, 1961, defines a mug shot as “a photograph •of a person’s face — usually used of official police photographs”. In the case of State v. Jacobs, 94 Ariz. 211, 382 P.2d 683 (1963) it was held that a reference to a “mug shot” of a defendant by a State’s witness in ■a criminal trial was prejudicial error as implying a prior criminal conviction. In ■support thereof, the court cited Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742 (1947), and Hatchet v. United States, 54 App.D.C. 43, 293 F. 1010 (1923).
In the case sub judice, the opening ■statement to the jury by the prosecutor to :the effect that appellant had been identified by mixing his picture with other mug ■shots had the effect of conveying to the .jury that appellant had committed prior ■crimes or had previously been in trouble with police and therefore was highly prejudicial.
The State contends that even if the prosecutor’s opening remark was improper, appellant took the stand and testified that he never had been convicted of a crime and ■that such testimony of appellant cured any •prejudicial remarks of the prosecutor. With this we disagree. Who is to say whether the jury would have reached the •same conclusion if the remarks of the prosecutor had not been made?
In light of the foregoing, it is not necessary to consider appellant’s second point for review.
The judgment appealed is reversed and the cause is remanded for a new trial.
(dissenting).
I respectfully dissent.
The remark made by the prosecutor during his opening statement does not strike me as being prejudicial error, clearly demonstrated.
In today’s society, a great number of respectable citizens are required to have official police photographs for security or other reasons. I do not agree with the majority that the remark compels an inference in the minds of the jury of the defendant’s involvement in prior independent crimes so as to constitute reversible error.
As a general rule, more latitude is accorded to opening statements, which are not considered as a part of the evidence, than to those made in the course of the trial itself. See 23A C.J.S. Criminal Law § 1085. It is this latitude which removes the remark in question here from the rule of the Jacobs case cited by the majority, where the prejudicial remark was made in the course of testimony by police officers. The technical error here did not injuriously affect the substantial rights of the defendant. Section 924.33, Florida Statutes, F.S.A.
SWANN, Judge
(dissenting).
I respectfully dissent.
The remark made by the prosecutor during his opening statement does not strike me as being prejudicial error, clearly demonstrated.
In today’s society, a great number of respectable citizens are required to have official police photographs for security or other reasons. I do not agree with the majority that the remark compels an inference in the minds of the jury of the defendant’s involvement in prior independent crimes so as to constitute reversible error. As a general rule, more latitude is accorded to opening statements, which are not considered as a part of the evidence, than to those made in the course of the trial itself. See 23A C.J.S. Criminal Law § 1085. It is this latitude which removes the remark in question here from the rule of the Jacobs case cited by the majority, where the prejudicial remark was made in the course of testimony by police officers. The technical error here did not injuriously affect the substantial rights of the defendant. Section 924.33, Florida Statutes, F.S.A.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Loftin v. State, 273 So. 2d 70 (Fla. 1973)…DEKLE, Justice. Submitted for consideration on certiorari upon alleged conflict with Jones v. State, 194 So. 2d 24 (Fla.App.3d 1967), is the First District’s affirmance at 258 So. 2d 834 (Fla.App.1972) as harmless error of the prosecutor’s reference to “mug books” and “other mug shots” in connection with the initial identification of the defendant. Fla.Const, ar…1 / 2
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Anderson v. State, 230 So. 2d 704 (Fla. 2d DCA 1970)…defendant was a criminal and that it was not relevant to any issues before the Court, and that its ‘sole thrust’ was at the character and propensity of the defendant”. Anderson relies on the 3rd District Court case of Jones v. State, Fla.App. 1967, 194 So. 2d 24, a Split-Court decision, the majority opinion being written by a visiting Circuit Judge. In that case the prosecutor in the trial Court, in his opening statement to the jury, referred to defendant Jones as being included in “a bunch * * * of * * * m…
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D'Anna v. State, 453 So. 2d 151 (Fla. 1st DCA 1984)…So. 2d 922 (Fla.1983); see also Loftin v. State, supra at 71, (question is the extent to which a “mug shot” or reference to same is a “definite statement” conveying to the jury a defendant’s prior criminal propensity, distinguishing Jones v. State, 194 So. 2d 24 (Fla. 3d DCA 1976)). Judged by the foregoing standards, the introduction of “mug shots” complained of here must be considered harmless error. The evidence identifying appellant as the perpetrator of the Zippy Mart robbery was overwhelming: the uneq…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Wilson v. State, 171 So. 2d 903 (Fla. 2d DCA 1965)
- Captain H. B. Young & the City of Miami v. The First Nat'l Bank OF Miami, 171 So. 2d 418 (Fla. 3d DCA 1965)
- Jordan v. State, 171 So. 2d 418 (Fla. 1st DCA 1965)