JACK FRANKLIN FELDMAN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Franklin Feldman, Jr. appeals his conviction for robbery, challenging the trial court's denial of two motions for mistrial based on allegedly improper cross-examination questions. The court affirmed, holding that the trial judge properly instructed the jury to disregard the offending questions, which was sufficient to cure any error.
The trial court properly denied both motions for mistrial because the court's instruction to the jury to disregard the objectionable questions was sufficient to cure any error. The question about the alias was not of such prejudicial nature as to vitiate the jury's verdict when it caused no substantial harm to the defendant.
“A mistrial should not be entered by the court unless the remarks are such that instructing the jury to disregard them would not cure the error.”
Establishes the legal standard for when a mistrial is warranted for improper questions—only when jury instructions cannot cure the error.
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Join FLexlaw to unlock all legal intelligenceFeldman was convicted of robbery by jury verdict. During the state's case, a witness was asked whether she knew the defendant to use drugs or narcotic…
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Jack Franklin Feldman, Jr., appeals .a judgment and sentence entered pursuant to a jury verdict finding defendant guilty of robbery.
Defendant assigns as error the failure of the trial court to grant defendant’s motions for a mistrial because of alleged improper questions propounded by the state’s attorney.
One of the state’s witnesses was asked by the prosecutor whether she ever knew defendant to use any drugs or narcotics. The witness answered no. Defense counsel objected to the question and moved for a mistrial. The court sustained the objection but denied the motion for a mistrial. The court immediately instructed the jury to disregard the question and answer.
*49While the defendant was being cross-examined, the prosecutor inquired of defendant whether he had ever gone under the name of Fields. When the defendant answered, “Yes”, the prosecutor asked if there was any particular reason for this. Defense counsel objected to the question and again moved for a mistrial. The court sustained the objection but denied the motion for a mistrial. Thereafter, in the course of further cross-examination the defendant answered “Yes” to the following question, the propriety of which is not questioned: “Have you ever been convicted of a crime in the Court of Record in Florida ?”
Defendant contends that the trial court erred in denying his motions for a mistrial because both of the above questions imply other criminal involvement and improperly attacked his reputation.
Where an improper question is asked a witness, the proper procedure is for the defendant to request the court to instruct the jury to disregard the objectionable remark. A mistrial should not be entered by the court unless the remarks are such that instructing the jury to disregard them would not cure the error. Morris v. State, 1930, 100 Fla. 850, 130 So. 582. The court’s instruction to the jury to disregard the question concerning the defendant’s use of drugs was sufficient to cure the error and the first motion for a mistrial was properly denied.
Defendant urges that the question by the state concerning the defendant’s use of the name Fields also implies criminal involvement. Defendant asserts that the suggestion of an alias to the jury so prejudiced the jury that the court should have granted his second motion for a mistrial.
Considering the record of the trial as presented to this court, we are of the opinion that the question concerning the use of the name Fields was not of such a prejudicial nature as to vitiate the result reached. When an alleged error does no substantial harm, as is the situation here, and the defendant is not materially prejudiced by the occurrence, the court should deny the motion for a mistrial. Perry v. State, 1941, 146 Fla. 187, 200 So. 525.
Affirmed.
WALDEN, C. J., and CROSS, J., concur.
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Straight v. State, 397 So. 2d 903 (Fla. 1981)…jury the existence of such prejudicial evidence, was highly improper, is without question. We do not believe, however, that the improper comment, by itself, was sufficient to require that the court grant the motion for a mistrial. Feldman v. State, 194 So. 2d 48 (Fla. 4th DCA 1967). The appellant denied any involvement or knowledge of the crime charged. The improper comment did not tend to discredit any particular feature of appellant’s account of his activities during the time the crime was being committed…
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Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974)…t and to move for corrective instructions. A mistrial is the remedy when the corrective instruction is denied or is inadequate or when the offense is repeated. See Perry v. State, 146 Fla. 187, 200 So. 525 (1941), and Feldman v. State, Fla.App.1967, 194 So. 2d 48. In the case now before us, we hold that no abuse of the trial judge’s discretion has been demonstrated upon his failure to declare a mistrial. Appellant’s remaining points have been examined and do not present error. Affirmed.…
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Palmer v. State, 486 So. 2d 22 (Fla. 1st DCA 1986)…ny are thought to be necessary prerequisites to a motion for mistrial. Williams v. State, 443 So. 2d 1053 (Fla. 1st DCA 1984); Smith v. State, 365 So. 2d 405 (Fla. 3d DCA 1978); Anderson v. State, 230 So. 2d 704 (Fla. 2d DCA 1970); Feldman v. State, 194 So. 2d 48 (Fla. 4th DCA 1967). In such circumstances, the trial court should not grant a mistrial unless the remarks are such that instructing the jury to disregard them could not cure the error; that is, the remarks constitute fundamental error. Feldman, sup…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- Perry v. State, 146 Fla. 187 (Fla. 1941)