JAMES EARL LOFTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Loftin was convicted of armed robbery and sentenced to 35 years. He appealed on the sole ground that the prosecutor committed prejudicial error by mentioning during opening statement that the defendant was identified from "mug books." The appellate court affirmed, finding that while the prosecutor's remark was error, it was not harmful given the strong in-person eyewitness identification evidence.
While the prosecutor's statement about mug books was error, it did not constitute harmful error requiring reversal. The strong eyewitness identification by the night manager, who saw the appellant at close range in a well-lit area and observed both rear and side views of him during the robbery, provided sufficient independent evidence to sustain the conviction and demonstrate a fair trial was possible.
[1] A prosecutor's opening statement remark that a defendant was identified from "mug books" constitutes error.
[2] An isolated prosecutorial error in an opening statement does not constitute harmful error if the evidence of guilt is otherwise strong.
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“we hold that this isolated statement did not constitute harmful error”
The court's key holding that the prosecutor's mug book reference, while erroneous, was not harmful enough to warrant reversal
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Join FLexlaw to unlock all legal intelligenceOn November 12, 1970, two men robbed the Howard Johnson's Motel. One was armed with a .38 caliber pistol. The gunman announced "This is a holdup. Move…
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Appellant Loftin appeals from a judgment of conviction and sentence of 35 years for armed robbery.
*835Appellant’s sole point on appeal is that the prosecutor committed prejudicial error when he indicated to the jury during his opening statement that the defendant was initially identified from “mug books.”
On the night of November 12, 1970, the Howard Johnson’s Motel on Phillips Highway in Jacksonville was robbed. The night manager and the bellboy, who was operating the switchboard, were in the motel lobby at the time of the robbery. Two negro men came in, one of whom was armed with a .38 caliber pistol. The man with the gun (later identified by the manger as the appellant) announced, “This is a holdup. Move and I’ll kill you.”, and then proceeded to put the gun against the night manager’s stomach. At this time the switchboard buzzed and when the bellboy reached for it he was hit in the mouth with the gun which knocked out several of his teeth and rendered him unconscious. The night manager was then forced to lie down on the floor. The two men took approximately $500 from the cash drawer and left.
The following afternoon a Police Sergeant brought 15 to 20 photographs of suspected robbers to the motel for the night manager to examine. He did not identify the robbers from any of these photographs. Several days later a policeman brought approximately 10 more photographs and from this group the night manager tentatively identified the photograph of appellant as one of the robbers. On the following day the night manager attended a lineup and identified appellant, who was in the lineup, as one of the robbers.
We have carefully considered the record in this case and conclude the controverted remark made by the prosecutor during his opening statement was error. Jones v. State, 194 So.2d 24 (3 Fla.App.1967). However, we hold that this isolated statement did not constitute harmful error. Loftin, while standing a foot and a half away, in a well-lighted place, was identified by the night manager as the robber who pointed a gun at his stomach. In addition, the night manager testified that he saw the “rear and the side view” of appellant “because he turned around when I made a slight movement and he repeated again, . . . ‘This is the third time I’ve told you,’ he said, ‘move again and I’ll kill you.’ ” In view of this positive identification, we hold that the controverted remarks uttered by the prosecutor during his opening statement did not preclude the appellant from receiving a fair and impartial trial.
The judgment appealed is affirmed.
SPECTOR, C. J., and RAWLS and JOHNSON, JJ., concur.
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Cited By
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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, art. V, § 3(b)(3) (1973), F.S.A. This is the sole issue submitted for revi…
Authorities Cited
- Jones v. State, 194 So. 2d 24 (Fla. 3d DCA 1967)