FREDERICK MARK BARRETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Mark Barrett was convicted of first-degree murder and sentenced to life imprisonment. He appealed arguing the trial court erred by denying his motion for mistrial based on the prosecution calling the victim's father to identify a photograph of the deceased when non-related witnesses were available. The appellate court affirmed, holding that Barrett's failure to timely object at trial precluded relief.
The trial court did not err in denying the motion for mistrial. Although Florida law establishes that family members should not testify to identify the deceased when non-related witnesses are available, Barrett's failure to make timely objections at trial—when the witness testified and when the identification was offered—precluded relief. The claimed error was not fundamental error per se because there are recognized exceptions allowing relatives to identify homicide victims.
[1] A motion for mistrial made at the close of all evidence is properly denied when the defendant failed to raise a timely objection to the alleged error during trial.
[2] A defendant cannot refrain from making timely objections to perceived prejudicial matters and then wait to evaluate the relative strengths of the prosecution and defense…
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Join FLexlaw to unlock all legal intelligence“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 evaluated before raising a cry of prejudice.”
Establishes the principle that defendants must make contemporaneous objections and cannot wait until trial's end to raise challenges based on trial strategy.
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Join FLexlaw to unlock all legal intelligenceBarrett was convicted of first-degree murder. During the prosecution's case, the victim's father testified as a witness and identified a photograph of…
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Appellant was convicted of first degree murder and sentenced to life imprisonment. The sole judicial error assigned is the trial court’s denial of appellant’s motion for a mistrial made at the close of all of the evidence. For the reasons hereafter set forth, we conclude that the court did not err and that the judgment should be affirmed.
The state called the victim’s father as a prosecution witness. During the course of his testimony, he identified a photograph of the deceased victim. Appellant contends that in doing so the prosecution violated the well-established rule in Florida to the effect that a member of the deceased victim’s family may not testify for the purpose of identifying the victim where non-related witnesses are available to make such identification, citing Melbourne v. State, 1906, 51 Fla. 69, 40 So. 189; Rowe v. State, 1935, 120 Fla. 649, 163 So. 22; Hathaway v. State, Fla.App.1958, 100 So.2d 662; Gibson v. State, Fla.App.1966, 191 So.2d 58; Ashmore v. State, Fla.App.1968, 214 So.2d 67, and Abram v. State, Fla.App.1970, 242 So.2d 215,
Since the only other evidence of positive identification of the deceased victim was by means of opinion evidence based upon dental charts, a rather forceful argument could be made that the rule enunciated in the above-cited cases simply does not apply here. Furthermore, the testimony of the victim’s father touched on other relevant matters so that it might be said that this case was within a recognized exception to the rule. Cf. Scott v. State, Fla.App.1971, 256 So.2d 19. Nonetheless, we do not ground our decision on either of these bases, and in order to more forcefully focus on the issue which we consider decisive of this case, we can assume that the prosecution violated this rule by calling the victim’s father as a witness.
The witness in question was called to testify midway in the state’s case. Although he identified himself at the outset as the father of the victim, appellant’s coun*375sel did not then nor thereafter make any objection to the witness being allowed to testify. Furthermore, no objection was made when the witness was asked if he could identify the photograph of the deceased victim, nor was any motion to strike addressed to the witness’s response whereby he identified the photograph. After this witness was excused, the state called four additional witnesses in its case in chief, the defendant called four witnesses, and the state called two rebuttal witnesses, all of which consumed more than another day of trial. Then, after both sides had closed the presentation of evidence, the defendant for the first time made a motion for a mistrial on the ground that he was deprived of a fair and impartial trial by virtue of the state having called the victim’s father as a witness.
It was 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 evaluated before raising a cry of prejudice.
Appellant contends, however, that this created “fundamental error” thereby entitling him to a new trial at our hands even absent a timely objection in the trial court. This view has been rejected, either expressly or impliedly, in Rowe v. State, supra; Powell v. State, Fla.App.1968, 208 So.2d 146; and McGriff v. State, supra. Furthermore, we know that there are times when it is entirely proper (even over timely objection) for a relative of the homicide victim to identify the deceased victim, e. g. Scott v. State, supra; Megill v. State, Fla.App.1970, 231 So.2d 539; Furr v. State, Fla.App.1969, 229 So.2d 269; Wolfe v. State, Fla.App.1967, 202 So.2d 133, so that it certainly is not “fundamental error” per se.
The judgment is affirmed.
REED, C. J., and WALDEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Welty v. State, 402 So. 2d 1159 (Fla. 1981)…identification testimony from a member of a victim’s family, however, is not fundamental error and may be harmless error in certain instances. Malloy v. State, 382 So. 2d 1190 (Fla.1979); Rankin v. State, 143 So. 2d 193 (Fla.1962); Barrett v. State, 266 So. 2d 373 (Fla. 4th DCA 1972); Scott v. State, 256 So. 2d 19 (Fla. 4th DCA 1971). The basis for this rule is to assure the defendant as dispassionate a trial as possible and to prevent interjection of matters not germane to the issue of guilt. In the present…
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Dougan v. State, 470 So. 2d 697 (Fla. 1985)…ase we find no error on this point. As a general rule, members of a victim’s family should not identify a victim at trial. Welty v. State, 402 So. 2d 1159 (Fla.1981). Such an identification, however, is not fundamental error. Id.; Barrett v. State, 266 So. 2d 373 (Fla. 4th DCA 1972). Dougan’s failure to make a specific contemporaneous objection to this testimony, therefore, forestalls appellate review. Barclay v. State, 470 So. 2d 691 (Fla.1985). See Peavy v. State, 442 So. 2d 200 (Fla.1983); Routly v. State…
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Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)…he views as sufficient for appeal, an important point, as held in Owens v. State, 349 So. 2d 197, 198 (Fla. 1st DCA 1977), cert. dismissed, 353 So. 2d 677 (Fla.1978), German v. State, 379 So. 2d 1013, 1014 (Fla. 4th DCA 1980), and Barrett v. State, 266 So. 2d 373, 375 (Fla. 4th DCA 1972): 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 defens…
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 (13 total)
- Rowe v. State, 120 Fla. 649 (Fla. 1935)
- Urbie Melbourne v. State, 51 Fla. 69 (Fla. 1906)
- Pirie v. Pirie, 100 So. 2d 662 (Fla. 2d DCA 1958)
- Ashmore v. State, 214 So. 2d 67 (Fla. 1st DCA 1968)
- Anderson Scott v. State, 256 So. 2d 19 (Fla. 4th DCA 1971)
- Wolfe v. State, 202 So. 2d 133 (Fla. 4th DCA 1967)
- Mercer McClain Furr v. State, 229 So. 2d 269 (Fla. 2d DCA 1969)
- Harris v. The Directors OF Fla. Div. OF Corr., 191 So. 2d 58 (Fla. 1st DCA 1966)
- Gibson v. State, 191 So. 2d 58 (Fla. 1st DCA 1966)
- Powell v. State, 208 So. 2d 146 (Fla. 4th DCA 1968)