RICHARD MOORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Moore was convicted of robbery and commission of a felony by use of a firearm after a jury trial. On appeal, Moore challenged the admissibility of polygraph evidence, cross-examination limitations, jury instructions regarding polygraph evidence, and the denial of a change of venue motion based on pretrial publicity. The appellate court affirmed the conviction, finding no reversible error.
The court held that polygraph evidence was properly admitted under the stipulation between the parties, that the limitation on cross-examination regarding the expert's qualifications was proper given the stipulation, that the trial court's failure to instruct the jury on polygraph evidence weight was not error because defense counsel neither requested nor objected to such instruction, and that the denial of the change of venue motion was not an abuse of discretion because no bias was demonstrated and the jury need not be ignorant of the facts to be impartial.
[1] Stipulations between parties regarding the admissibility of polygraph evidence are generally upheld.
[2] A defendant may not cross-examine a polygraph expert regarding qualifications if the stipulation specifies a qualified operator.
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Join FLexlaw to unlock all legal intelligence“the record reveals that the defendant-appellant and the prosecution entered into a stipulation whereby the parties agreed that the results of the polygraph examination of the defendant would be admitted into evidence for the jury's consideration. Thus, the results of the examination were admissable.”
Establishes the legal basis for admitting polygraph evidence through stipulation.
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Join FLexlaw to unlock all legal intelligenceMoore was charged with robbery, being a felon in possession of a firearm, and commission of a felony by use of a firearm. He was tried by jury and fou…
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HAVERFIELD, Judge.
Defendant-appellant was charged by information with (1) robbery, (2) being a felon in possession of a firearm, and (3) commission of a felony by use of a firearm. He was tried by jury and found guilty on counts 1 and 3, a directed verdict being granted in defendant’s favor on count 2. Thereafter, defendant was sentenced to 15 years in the state penitentiary on count 1 with no sentencing on count 3. This appeal follows.
Appellant raises three points on appeal with regards to the admissability of polygraph evidence, refusal to allow cross-examination of the polygraph expert and neglecting to instruct the jury concerning the weight to be given the polygraph evidence.
The record reveals that the defendant-appellant and the prosecution entered into a stipulation whereby the parties agreed that the results of the polygraph examination of the defendant would be admitted into evidence for the jury’s consideration. Thus, the results of the examination were admissable. See State v. Brown, Fla.App.1965, 177 So. 2d 532; Askary v. State, Fla.App.1974, 294 So. 2d 33. Further, we find no merit in appellant’s argument that the trial judge erred in not permitting defense counsel to cross-examine the polygraph expert as to his qualifications for the stipulation provided that the defendant’s examination would be conducted before a duly qualified and licensed polygraph operator. We also note that counsel for defense was permitted to examine the polygraph operator as to the reliability of the machine. Turning to appellant’s argument that the trial court neglected to instruct the jury regarding the weight and sufficiency of polygraph evidence, we find that defense counsel neither requested nor objected to the failure to the giving of such an instruction and, therefore, appellant now is precluded from raising this as error for the first time on appeal. Clements v. State, Fla.App. 1973, 284 So. 2d 700.
Appellant also contends that the trial court erred in denying defendant’s motion for change of venue pursuant to RCrP 3.-240, 33 F.S.A. We cannot agree.
First, although defense counsel filed a motion for change of venue with accompanying affidavits, he apparently never brought this motion to the attention of the trial court as the record is completely devoid of the disposition, if any, thereof.
Second, the motion was based on the theory of prejudicial pretrial publicity. However, it appears from the record that only one of the jurors had read the article about the defendant’s arrest and all six of the jurors stated they were not biased. Absent a showing of bias it is presumed that the jurors will base their verdict upon the evidence given at trial. Murphy v. State, Fla.App. 1971, 252 So. 2d 385. Further, an impartial jury is not required to be totally ignorant of the facts and issues involved and may have formed some impression or opinion as to the merits of the case, particularly in criminal matters without being subject to objection on prejudicial pretrial publicity theory. Gavin v. State, Fla.App. 1972, 259 So. 2d 544. Thus, we cannot say that the trial judge abused his discretion in the case sub judice in denying the motion for change of venue.
We also have considered appellant’s remaining points on appeal and find them to be lacking in merit.
Accordingly, the judgment and sentence herein appealed is affirmed.
Affirmed.
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Griffin v. State, 414 So. 2d 1025 (Fla. 1982)…quest such an instruction, nor did he object to its omission. Therefore the issue is not properly presented to us and we will not consider it. Dorminey v. State, 314 So. 2d 134 (Fla.1975); Williams v. State, 285 So. 2d 13 (Fla.1973); Moore v. State, 299 So. 2d 119 (Fla.3d DCA 1974); Fla.R.Crim.P. 3.390(d). Appellant contends that the court erred in denying his motion to dismiss the indictment charging him with premeditated murder. He argues that the practice of allowing the state to proceed on alternative th…
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Goldwire Anderson v. State, 463 So. 2d 276 (Fla. 3d DCA 1984)…peremptorily by the defense and did not serve on the jury. No showing was made during the voir dire that these jurors could not be fair and impartial to the defendant. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Moore v. State, 299 So. 2d 119 (Fla. 3d DCA 1974); Gavin v. State, 259 So. 2d 544 (Fla. 3d DCA), cert, denied, 265 So. 2d 370 (Fla. 1972); see United States v. Jimenez-Diaz, 659 F. 2d 562 (5th Cir.1981), cert. den. sub nom., Salazar v. United States, 456 U.S. 907, 102 S.Ct. 1754,…
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State v. Cunningham, 324 So. 2d 173 (Fla. 3d DCA 1975)…te, Fla.1974, 303 So. 2d 632. The results may be admitted into evidence upon stipulation between the State and defense counsel. State v. Drown, Fla.App.1965, 177 So. 2d 532; Ashary v. State, Fla.App.1974, 294 So. 2d 33; Moore v. State, Fla.App.1974, 299 So. 2d 119. The sole purpose of the stipulation entered into in the Overhead Door Company case related to permissible evidence in that cause and in no other. Therefore, we hold that the trial judge properly suppressed any information obtained during the giving…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Brown, 177 So. 2d 532 (Fla. 2d DCA 1965)
- Gavin v. State, 259 So. 2d 544 (Fla. 3d DCA 1972)
- Askary v. State, 294 So. 2d 33 (Fla. 3d DCA 1974)
- Franklin v. State, 252 So. 2d 385 (Fla. 2d DCA 1971)
- Clements v. State, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Lawrence v. Hethcox, 284 So. 2d 700 (Fla. 3d DCA 1973)