JIMMIE LEE MCGRIFF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmie Lee McGriff appeals his second degree murder conviction, challenging the trial court's admission of identification testimony from the victim's father. The Florida appellate court affirmed the conviction, finding the identification testimony was proper and any error was not preserved for review due to defense counsel's failure to timely object.
The identification testimony by the victim's father was necessary and proper under the circumstances because there was no other eyewitness to the homicide who later viewed the body. Moreover, the issue was not properly preserved for appeal because defense counsel failed to object timely, move to strike, or move for mistrial when the testimony was given. The belated motion for mistrial after all testimony and closing arguments did not preserve the point for appellate review.
[1] Identification of a deceased victim by a parent is permissible when no other eyewitness to the homicide viewed the body.
[2] Failure to object to the admission of evidence, move to strike it, or seek a mistrial at the time it is offered generally waives the right to raise the issue on appeal.
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“the testimony as to identification by the victim's father was, in this particular case, necessary and proper, and not merely cumulative, inasmuch as there was no other eye-witness to the homicide who later viewed the body”
Court's rationale for why the father's identification testimony was admissible despite availability of other witnesses
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Join FLexlaw to unlock all legal intelligenceMcGriff was tried for first degree murder but convicted of second degree murder by jury. The State's first witness was James Peterson, the father of t…
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Appellant Jimmie Lee McGriff appeals to this Court from a judgment of conviction *455of second degree murder after he was found guilty of that offense by a jury upon trial for first degree murder.
Only one point is urged here for reversal, which point is clearly untenable. The first witness for the State was James Peterson, father of the deceased victim. He testified he identified the body of his son at Mound Park Hospital in the presence of a Doctor Tyrone. It is contended that this was fatal error because there were other witnesses than the father who were not relatives and who could have identified the deceased.
But the testimony as to identification by the victim’s father was, in this particular case, necessary and proper, and not merely cumulative, inasmuch as there was no other eye-witness to the homicide who later viewed the body.
In the second place, and more importantly, no objections were made by defense counsel to the questions which elicited the identification testimony of the father, nor was there any motion to strike the testimony after given, nor any mistrial moved for at that time. Belatedly, after all the testimony had been concluded, both sides had rested, and the State had made its closing argument to the jury, defense counsel then made a motion for mistrial, but even then the grounds of such motion are not in the record before this Court. The circumstance of such motion being made appears only as a general recital in the minutes of the trial Court.
Such identification testimony by the father of the victim might, under certain circumstances not present here, have merited substantial consideration upon appeal if properly raised, but here there was no attempt to preserve the point. And patently, it could not be considered such a substantial departure from the concept of a fair trial as to constitute fundamental error. So we must hold that the dilatory attempt to raise the question after all the testimony was in and arguments to the jury begun was “too late and too little”.
The judgment appealed must therefore be
Affirmed.
LILES, Acting C. J., concurs.
McNULTY, J., concurs in conclusion only.
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Barrett v. State, 266 So. 2d 373 (Fla. 4th DCA 1972)…s not error to deny the motion for mistrial, coming as it did at the close of all of the evidence, where appellant had failed to raise any timely objection to the witness testifying or to the identification testimony. McGriff v. State, Fla.App.1970, 232 So. 2d 454. The accused in a criminal proceeding is not entitled to the privilege of refraining from making timely objection to matters felt to be prejudicial and then waiting until the relative strength of the prosecution and defense presentations can be eval…
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Owens v. State, 349 So. 2d 197 (Fla. 1st DCA 1977)…not error to deny the motion for mistrial, coming as it did at the close of all of the evidence, where appellant had failed to raise any timely objection to the witness testifying or to the identification testimony. McGriff v. State, Fla.App. 1970, 232 So. 2d 454. The accused in a criminal proceeding is not entitled to the privilege of refraining from making timely objection to matters felt to be prejudicial and then waiting until the relative strength of the prosecution and defense presentations can be eval…
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Boyce Lee Russell v. Louie L. Wainwright, 266 So. 2d 375 (Fla. 4th DCA 1972)…rejudice arising out of the state’s use of the victim’s son as a witness. The absence of a timely objection at trial will preclude a consideration of the issue on appeal. Rowe v. State, 1935, 120 Fla. 649, 163 So. 22; McGriff v. State, Fla.App.1970, 232 So. 2d 454; Powell v. State, Fla.App.1968, 208 So. 2d 146. The argument submitted here that this is “fundamental error” and thus necessarily entitles Russell to a new trial despite the absence of any timely objection in the trial court, is unsound and has been…