JAMES EARL LOFTIN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court upheld the First District Court of Appeal's affirmance of a conviction, finding that the prosecutor's references to 'mug books' and 'mug shots' during opening and summation, while improper, constituted harmless error due to other clear identification evidence.
The prosecutor's references to 'mug shots' and 'mug books' are improper and constitute error, but do not require automatic reversal. In this case, the error was harmless given the strong identification evidence, the lack of objection or mistrial motion, and the factual accuracy that the defendant was not identified in the initial mug book viewings.
[1] A prosecutor's reference to "mug books" or "mug shots" during a trial constitutes error.
[2] Error arising from a prosecutor's reference to "mug books" or "mug shots" may be deemed harmless when other clear evidence of identification exists, including unequivocal…
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Join FLexlaw to unlock all legal intelligence“It has been clearly said before that such references in the prosecution of a defendant should not be made to 'mug shots' and the like and plainly held that this is error.”
Establishes that prosecutor references to mug shots are improper error, but doesn't require automatic reversal
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Join FLexlaw to unlock all legal intelligenceThe defendant was identified by a witness who had a clear view of him within one foot over 5-6 minutes during a robbery. The witness initially viewed …
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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 review.
*71It has been clearly said before that such references in the prosecution of a defendant should not be made to “mug shots” and the like and plainly held that this is error.1 We must agree that in the present circumstances the error was harmless as we shall shortly demonstrate but we emphasize again that a prosecutor should not inject this error which can well jeopardize the prosecution and a possible conviction and thereby needlessly waste the urgently needed time of the court and jury, not to mention that of the defendant himself in being subjected to a re-trial.
We are not, however, willing to say that such error in this matter should be an “automatic reversal” upon the mere use of the words “mug books.” As in other such instances, the entire record and surrounding circumstances must be considered by an appellate court whose review would also be unnecessary if the prosecutor had avoided the injection of what had already been pronounced by this Court as error to do.
The opinion in Jones v. State, 194 So.2d 24 (Fla.App.3d 1967), by an assigned circuit judge with one district judge dissenting with opinion, has apparently not found support in subsequent district court opinions over the state. Willis v. State, 208 So.2d 458, 460 (Fla.App.1st 1968); Anderson v. State, 230 So.2d 704 (Fla.App.2d 1970); Moore v. State, 267 So.2d 850 (Fla.App.4th 1972).
The pertinent comment in the opinion in Jones refers to a definite statement made in the prosecutor’s opening “to the effect that appellant had been identified by mixing his picture with other mug shots” and thereby having conveyed to the jury that appellant had committed prior crimes or previously been in trouble with the police. The less definite statements in the cause before us do not rise to the level of such a definite reference> in any event, and in that respect may be distinguished.
Here the matter dealt with identification and the references became harmless because of other clear evidence of the defendant’s identification, including an unequivocal identification in court. The identifying witness had a clear view of the defendant within one foot over a period of 5 to 6 minutes during the course of a robbery. Moreover, the defendant and 3 alibi witnesses testified regarding principally the matter of identification, so that the question was thoroughly gone into and the incidental, though unfortunate, references to “mug shots” are well within the harmless error statute (§ 924.33).
Additionally, there was no objection made to the mug shot references, nor motions for mistrial nor to instruct the jury to disregard the references. These circumstances do not meet that test in Akin v. State, 86 Fla. 564, 98 So. 609 at 612 (1923), that the references must be “of such character that neither rebuke nor retraction . . . [would] entirely destroy their sinister influence . . . .” See also, Carlile v. State, 129 Fla. 860, 176 So. 862 (1937); Ailer v. State, 114 So.2d 348 (Fla.App.2d 1958).
In all events, the “mug books” references were to early displays of pictures in which the witness did not see the defendant among them anyway. The prosecutor so stated in referring to the persons photographed so that the defendant was not placed in that category. Moreover, the defendant expressly testified that he had never been convicted of a crime.
It was in a third examination of photographs that the witness identified the defendant and there was only a factual reference to this in the prosecutor’s summation.
Under these circumstances it cannot be said that the error was harmful. The *72First District Court of Appeal was correct and the writ of certiorari heretofore entered must be and is hereby
Discharged.
CARLTON, C. J., and ROBERTS and McCAIN, JJ., concur.
ERVIN, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982)…ce files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the police; a jury instruction to that effect, if requested and given, would have cured the error. See Loftin v. State, 273 So. 2d 70 (Fla.1973); Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977). Appellant further contends here that the prosecutor’s reading of the defendant’s home address to the jury from an [*437] arrest affidavit not in evidence, for the purpose of destroy…
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McCALL v. State, 463 So. 2d 425 (Fla. 3d DCA 1985)…tive instruction, the comment did not rise to the level of prejudicial error requiring a mistrial. The extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances. Loftin v. State, 273 So. 2d 70 (Fla.1973); D’Anna v. State, 453 So. 2d 151 (Fla. 1st DCA 1984); Evans v. State, 422 So. 2d 60 (Fla. 3d DCA 1982); Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977), cert, denied, 359 So. 2d 1217 (Fla. 1978). See Ferguson v. State, 417 So. 2d 639…
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State v. Rucker, 330 So. 2d 470 (Fla. 1976)…ENGLAND, Justice. By petition for a writ of certiorari, the State asks that we review and reverse a decision of the Third District Court of Appeal reported at 307 So. 2d 830. We noted a direct conflict between that decision and Loftin v. State, 273 So. 2d 70 (Fla. 1973), issued our writ and dispensed with oral argument. The point at issue is whether reference to the phrase “mug shots” in a prosecutor’s closing argument to a jury constitutes reversible error in all cases. The district court believed it…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Akin v. State, 86 Fla. 564 (Fla. 1923)
- Carlile v. State, 129 Fla. 860 (Fla. 1937)
- Adler v. Copa Corp., 212 So. 2d 337 (Fla. 3d DCA 1968)
- Alberta E. Ailer v. State, 114 So. 2d 348 (Fla. 2d DCA 1959)
- Willis v. State, 208 So. 2d 458 (Fla. 1st DCA 1968)
- Jones v. State, 194 So. 2d 24 (Fla. 3d DCA 1967)
- Anderson v. State, 230 So. 2d 704 (Fla. 2d DCA 1970)
- Williams v. State, 233 So. 2d 428 (Fla. 3d DCA 1970)
- Moore v. State, 267 So. 2d 850 (Fla. 4th DCA 1972)
- Loftin v. State, 258 So. 2d 834 (Fla. 1st DCA 1972)