MILTON BERNARD CONEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Milton Bernard Coney appeals his conviction for robbery and aggravated assault, challenging the sufficiency of evidence despite favorable lie detector test results, the admission of photographs, denial of a continuance, and an alleged improper comment by the state. The court affirms the conviction, finding sufficient evidence, no trial court error, and that any comment by the state did not constitute reversible error.
The court affirmed the conviction, holding that the jury properly weighed the eyewitness identifications against the lie detector results and found sufficient evidence of guilt; that photographs were properly admitted; that no abuse of discretion occurred in denying the continuance given defendant's lack of diligence; and that the state's remark did not constitute reversible error because it was made during argument between counsel before trial and defendant ultimately did testify.
[1] A jury's determination of the weight to be given to evidence, including lie detector test results and eyewitness identifications, is within its province.
[2] Sufficient, competent evidence can sustain a guilty verdict even when favorable lie detector test results are admitted.
Previewing 2 of 5 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 weight to be given the results of the test and the specific identification of defendant as being present at the scene, or participating in the robbery, was for the jury. The jury weighed this evidence and found defendant guilty. This was within their province.”
Establishes that the jury properly evaluated conflicting evidence and the appellate court will not second-guess the jury's verdict on sufficiency of evidence grounds.
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Join FLexlaw to unlock all legal intelligenceConey was charged with robbery and aggravated assault. Four eyewitnesses positively identified him as being present at or participating in the robbery…
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Defendant, Milton Bernard Coney, appeals from his adjudication for the crime of robbery and aggravated assault.
The parties stipulated to the admissibility of the favorable results of two lie detector tests taken by defendant. The results of the tests were admitted into evidence and defendant contends there was therefore, insufficient evidence to establish his guilt and the case should be remanded for a new trial. The defendant was positively identified by four eyewitnesses as being present, or participating in the robbery. The weight to be given the results of the test and the specific identification of defendant as being present at the scene, or participating in the robbery, was for the jury. The jury weighed this evidence and found defendant guilty. This was within their province. We find there was sufficient, competent evidence to sustain the guilty verdict.
We find no error in the admission by the trial court of certain photographs of defendant into evidence. See Johnson v. State, Fla.App.1971, 248 So.2d 208; Solloa v. State, Fla.App.1969, 227 So.2d 217; and Avis v. State, Fla.App.1969, 221 So.2d 235.
We have considered the argument that the trial court abused its discretion in not granting defendant a continuance for the purpose of presenting a witness. The record reflects, and it is admitted, that this case had been set for trial for a considerable period of time and that defendant had not attempted to subpoena the witness, or take any other action, in order to have the witness present for trial. It appears defendant failed to take the necessary steps to have the witness present and there was a lack of due diligence on his part. See Dupree v. State, Fla.1936, 125 Fla. 58, 169 So. 600. We hold that there has been no clear showing of an abuse of judicial dis*498cretion on this point. See Henderson v. State, Fla.1956, 90 So.2d 447.
Finally, defendant argues reversal because of an alleged comment by the state on the defendant’s failure to testify. This point arises as a result of defendant’s calling his mother to testify. Her testimony involved defendant’s presence on the evening of the alleged robbery. She was asked questions, during her direct testimony, concerning defendant’s whereabouts prior to 8:00 P.M. on the date of the robbery. The state objected to this testimony and the following occurred:
“State: . . . Mr. Coney is the best evidence as to what his conversations were.
“The Court: Sustained .
“Defendant: I am going to move for a mistrial on obvious grounds.
“The Court: Denied.”
Defendant argues this is reversible error under F.S. § 918.09, F.S.A. Defendant did take the stand and testified on his own behalf subsequent to the incidents reported above and there was no comment made in closing arguments concerning this point. We think the answer to this problem is set forth in People v. Wood, 306 Ill. 224, 137 N.E. 799, wherein it was stated:
“It is also contended that the state’s attorney committed prejudicial error in calling attention to the fact that the plaintiff in error did not testify. The record in this case shows that what was said by the state’s attorney occurred in a discussion between counsel before the court. It appears from the record that an argument was had pertaining to the admissibility of certain evidence, when counsel for the state said, ‘I don’t see how any witness except the defendant Wood could testify to that.’ At the time the remark was made the plaintiff in error had not finished putting in his case, and it was not apparent- that he would not testify. The remark was addressed to the court in the argument between counsel, and does not come within the rule laid down in Angelo v. People, 96 Ill. 209, 36 Am.Rep. 132, and other cases cited by the plaintiff in error, declaring it to be error to refer to the fact that a defendant charged with crime did not testify.
We have examined the record in this case, and are convinced that there is no reversible error in it. The judgment will therefore be affirmed.
Judgment affirmed.”
See also Gatlin v. State, 1914, 72 Tex.Cr.R. 516, 163 S.W. 428; and Deal v. State, 1925, 99 Tex.Cr.R. 385, 268 S.W. 746. Under these authorities, we hold reversible error was not committed and the judgment herein appealed is
Affirmed.
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Citator
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Goree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982)…his witness’s presence. See Moore v. State, 59 Fla. 23, 52 So. 971 (1910); Pittman v. State, 360 So. 2d 1138 (Fla. 1st DCA 1978); Whalen v. State, 335 So. 2d 631 (Fla. 1st DCA 1976); Gause v. State, 270 So. 2d 383 (Fla. 3d DCA 1972); Coney v. State, 258 So. 2d 497 (Fla. 3d DCA 1972). And, again, if on the following morning, with final arguments about to commence, the trial court had rejected a defense request for further time to produce and present the testimony of the witness, we would be unable to find erro…
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Farmer v. City OF Fort Lauderdale, 427 So. 2d 187 (Fla. 1983)…, City of Miami v. Jervis, 139 So. 2d 513 (Fla. 3d DCA 1962); that a jury can give exculpatory polygraph test evidence admitted upon stipulation whatever weight it chooses and can convict on the basis of other incriminatory evidence, Coney v. State, 258 So. 2d 497 (Fla. 3d DCA), cert. denied, 262 So. 2d 448 (Fla.1972); and that a defendant cannot demand discovery from the state of the polygraph results of a witness since such tests are not admissible in evidence, Anderson v. State, 241 So. 2d 390 (Fla.1970),…
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Girtman v. State, 270 So. 2d 380 (Fla. 3d DCA 1972)…or the trial court to deny an oral motion for continuance for additional examinations when that motion was presented to the court at the call of the case for trial. See Dupree v. State, 125 Fla. 58, 169 So. 600 (1936); Coney v. State, Fla.App. 1972, 258 So. 2d 497. Affirmed.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Solloa v. State, 227 So. 2d 217 (Fla. 3d DCA 1969)
- Dupree v. State, 125 Fla. 58 (Fla. 1936)
- AVIS v. State, 221 So. 2d 235 (Fla. 1st DCA 1969)
- Jonas Henderson v. State, 90 So. 2d 447 (Fla. 1956)
- Johnson v. State, 248 So. 2d 208 (Fla. 3d DCA 1971)