DAN EVERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dan Evers was convicted of aggravated battery and petit larceny (lesser-included offense of robbery charged) and sentenced to three years imprisonment. On appeal, Evers challenged the trial court's denial of his motions for mistrial based on allegedly prejudicial prosecutorial statements and his motion for continuance, but the appellate court found no reversible error and affirmed the conviction.
The trial court did not commit reversible error in denying the motions for mistrial or the motion for continuance. The court held that motions for mistrial based on opening argument statements must be preceded by an objection and request for a disregard instruction, and that denial of a mistrial motion does not constitute harmful error when the evidence in the record does not support a finding of substantial harm to the defendant's rights.
[1] A motion for mistrial based on prosecutorial remarks during opening argument may be denied if not preceded by an objection and a request for a disregard instruction.
[2] Denial of a motion for mistrial is not reversible error if the trial judge determines that an improperly asked question did not cause substantial harm to the rights of th…
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Join FLexlaw to unlock all legal intelligence“The motions for mistrial made for certain statements of the prosecutor in opening argument were not preceded by objection and request to the court to give a "disregard instruction" to the jury.”
Establishes the procedural requirement that objections to opening argument must be coupled with requests for jury instructions before seeking mistrial.
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Join FLexlaw to unlock all legal intelligenceEvers and two other men were charged with aggravated battery and robbery. At trial before a jury, Evers was found guilty of aggravated battery and pet…
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The appellant and two other men were charged with aggravated battery, in violation of § 784.045, and in a second count with robbery, in violation of § 813.011 Fla.Stat., F.S.A. On trial before a jury the appellant was found guilty of aggravated battery, and, on the robbery count, was found guilty of petit larceny. The sentence imposed was imprisonment in the state penitentiary for a term of three years, with credit given for 42 days’ time served in jail prior to sentencing.
On this appeal therefrom appellant contends the court erred by denying his motions for mistrial made on occasions where the prosecutor in opening argument and in questioning a witness at trial made remarks claimed by appellant to be prejudicial and such as to deprive him of a fair trial. Additionally, appellant contends the court erred in denying his motion for a continuance made during the course of the trial. Upon consideration thereof in the light of the record, briefs and argument, we hold that no reversible error has been made to appear.
*31The motions for mistrial made for certain statements of the prosecutor in opening argument were not preceded by objection and request to the court to give a “disregard instruction” to the jury. Morris v. State, 100 Fla. 850, 130 So. 582. Reference to the same subject when made in the question by the prosecutor during the trial prompted an objection and motion for a mistrial by defendant’s counsel. The objection was sustained, and motion for mistrial denied. We hold that in the context of the evidence in this case the denial of the defendant’s motion for mistrial did not constitute harmful error. See Williams v. State, Fla. 1959, 110 So.2d 654. In Garcia v. State, Fla.App.1962, 142 So.2d 318, the court said: “The matter of granting or refusing to grant a motion for mistrial is largely discretionary with the trial judge. If the judge determines that the question improperly asked does no substantial harm to the rights of the accused, the motion should be denied. See Perry v. State, 146 Fla. 187, 200 So. 525, text 527.”
Regarding the motion for continuance, after certain evidence had been presented on behalf of the defendant, and prior to resting, defendant’s counsel advised the court that he wished to present the testimony of an additional witness whom he stated could not be contacted until after five o’clock of that day, and an oral motion was made for a continuance to the next day. It appeared from a proffer made by defendant’s counsel that the testimony which such witness would give would bear on credibility of the victim. There was no showing that the witness had been subpoenaed. The closing arguments of counsel were then made, following which the trial was recessed late in the day and was resumed the next day, at which time the court’s charges were given to the jury. No application was made by the defendant on that following day to reopen the case for the purpose of presenting additional evidence.
The judgment is affirmed.
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Doyle v. State, 460 So. 2d 353 (Fla. 1984)…the jury which the attorney, without relinquishing his demand for mistrial, conceded was satisfactory.2 The determination of whether substantial justice warrants the granting of a mistrial is within the discretion of the trial court. Evers v. State, 280 So. 2d 30 (Fla. 3d DCA 1973). Dealing with the conduct of jurors is likewise left to the sound discretion of the court. Walker v. State, 330 So. 2d 110 (Fla. 3d DCA), cert. denied, 341 So. 2d 1087 (Fla.1976). We find no abuse of that discretion here. Finally…
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Goree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982)…ant’s insanity defense. Finally, in Hicks, since closing arguments were held that very evening, the defendant’s failure to attempt to reopen the case the following day was, under those circumstances, deemed excusable. [*1354] But see Evers v. State, 280 So. 2d 30 (Fla. 3d DCA 1973) (noting that even though closing arguments had been made the day before, no motion to reopen the case for the purpose of presenting additional testimony was made the following day before the court instructed the jury). Although w…
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Taylor v. State, 294 So. 2d 648 (Fla. 1974)…rights of the appellant.” The trial judge was therefore correct in denying the motion for mistrial upon the showing of the absence of a specific fundamental or prejudicial error. See Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Evers v. State, 280 So. 2d 30 (Fla.App.1973). As to appellant’s second point, dealing with the rejection of the jury’s recommendation of mercy and the immediate imposition of the death sentence, we must look to the language and intent of Florida Statutes Section 921.141, F.S.A.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- Perry v. State, 146 Fla. 187 (Fla. 1941)
- Garcia v. State, 142 So. 2d 318 (Fla. 2d DCA 1962)