GASPAR ROMERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed murder conviction, rejecting claims that prosecutor misstated insanity law during voir dire and that a six-year-old child witness was incompetent to testify.
A trial court does not abuse its discretion in admitting testimony from a six-year-old child witness when the court observes the child and determines the child is competent, and a prosecutor's misstatement of insanity law during voir dire that is immediately corrected by curative instruction does not constitute reversible error.
[1] The competency of a child witness to testify is within the discretion of the trial judge, who observes the child and judges its intelligence and ability to comprehend the…
[2] A prosecutor's misstatement of law during voir dire that is immediately corrected by the trial court with curative instruction does not constitute reversible error.
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Join FLexlaw to unlock all legal intelligenceGaspar Romero was convicted by jury of two counts of second-degree murder. A six-year-old child who was present at the shootings testified at trial, a…
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PER CURIAM.
The appellant Gaspar Romero was found guilty by a jury and adjudicated guilty on two counts of murder in the second degree. On this appeal, two points are presented. The first point urges that the defendant was entitled to a mistrial because the prosecution misstated the law on the defense of insanity during voir dire examination of the jury. This point does not present reversible error because the misstatement of the law was immediately corrected by the court and the curative instruction was sufficient to overcome the possibility of prejudice. Under these circumstances, the trial court did not abuse its discretion in denying the mistrial. See Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974).
The second point urges that the court erred in finding a six-year old child competent to testify as to the facts of the murders, where the child was present at the shootings. The competency of a child to testify in a given circumstance is a matter which must be left to the discretion of the trial judge, who observes the child and is able to judge its intelligence and ability to comprehend the duty to testify truthfully. The record of the examination of the infant witness fails to show an abuse of discretion concerning the court’s determination that the child was competent to testify. See Bell v. State, 93 So. 2d 575 (Fla.1957); and Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA 1976).
Affirmed.
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Citator
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Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983)…re the bounds of a proper examination are overstepped or the law is misstated by a party, immediate correction by the judge through a curative instruction may overcome the possibility of prejudice and avoid a discharge of the panel. Romero v. State, 341 So. 2d 263 (Fla. 3d DCA 1977). In sum, the presence of the judge is as essential to, and as much a critical part of, the voir dire of prospective jurors as it is of any other stage of the trial. We hold, therefore, that it was error for the trial judge to have…
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State v. Singletary, 549 So. 2d 996 (Fla. 1989)…cess involving considerable discourse between counsel and veniremen. If a party exceeds the bounds of proper examination or misstates the law, a judge can immediately alleviate the prejudice by means of a curative instruction. Peri; Romero v. State, 341 So. 2d 263 (Fla. 3d DCA), cert. denied, 346 So. 2d 1250 (Fla. 1977). A judge cannot fulfill this responsibility if he or she is absent. We conclude that the practice of permitting a judge’s absence during the questioning and selection of a jury should no long…
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Perez v. State, 711 So. 2d 1215 (Fla. 3d DCA 1998)…ect felony murder charge to the jury dissipated any harm and obviated the need to grant Perez’s motion to strike the panel. See Williams v. State, 674 So. 2d 155 (Fla. 4th DCA 1996); Louis v. State, 567 So. 2d 38 (Fla. 3d DCA 1990); Romero v. State, 341 So. 2d 263 (Fla. 3d DCA), cert. denied, 346 So. 2d 1250 (Fla.1977). Finally, we do not address Perez’s contentions that the court erred in permitting the state to exercise certain peremptory challenges and in failing to excuse a juror for cause: Perez failed…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leas v. Leas, 93 So. 2d 575 (Fla. 1957)
- Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA 1976)
- Diaz v. Warren, 303 So. 2d 369 (Fla. 3d DCA 1974)
- Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974)