GARY THOMAS WHITE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary White appeals his conviction for burglary and attempted grand larceny, arguing that the prosecutor improperly elicited testimony about collateral crimes during redirect examination. The court affirmed, holding that any error was induced by defense counsel's own questioning and that the trial judge did not abuse discretion in denying a mistrial motion.
The defendant is not entitled to a new trial because any error was induced by defense counsel's own questioning and the defendant may not take advantage of an error he himself created. Additionally, the trial judge did not abuse discretion in denying the mistrial motion, particularly where defense counsel failed to request a proper curative instruction.
[1] A defendant may not take advantage of an error which he himself induced.
[2] A defendant who brings up a topic on direct or cross-examination cannot complain on appeal when the prosecution elicits further testimony on that same topic.
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Join FLexlaw to unlock all legal intelligence“It is well established that a defendant may not take advantage of an error which he himself induced.”
Establishes the fundamental principle that the defendant cannot complain on appeal about error he caused through his own trial strategy.
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Join FLexlaw to unlock all legal intelligenceGary White was convicted of burglary and attempted grand larceny. During trial, defense counsel questioned a police officer about taking the defendant…
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PER CURIAM.
Defendant-appellant, Gary White, seeks reversal of his conviction for burglary and attempted grand larceny on the ground he is entitled to a new trial because the prosecutor elicited testimony concerning collateral crimes committed by him which were not relevant to the charges on which he was being tried. This alleged error arises out of the following colloquy during redirect examination by the prosecutor of one of the police officers: $ * * * s|« * “Q Sir, what defense counsel refers to as a little ride, which you referred to as location, would you explain to the jury what that means, to take a man on location? “MR. WOOD: I would object to that as being prejudicial. “MR. MONROE: I would point out that he was the one that brought it out in a sinister tone — Oh, you took him for a ride. “MR. WOOD: Your Honor, I am going to object to that characterization— “THE COURT: Sustained. “MR. WOOD: —and I would ask for a mistrial. “THE COURT: Denied. The objection is sustained, but the motion for mistrial is denied. “MR. WOOD: I would ask the jury to be instructed to disregard counsel’s remark. “THE COURT: Disregard the last statement of the prosecutor, members of the jury. “The previous objection to the question is overruled. Let’s have the question read back so the jury knows what the question is that is being asked. “(The pending question was read by the Reporter as above recorded.) “THE WITNESS: Individuals are taken on location to point out— “THE COURT: You better confine it to this case, before we get into some problem. “Q (By Mr. Monroe) Sir, is location a proper police procedure? “A Yes, sir, it is. “Q And when you take a man out on location, what do you mean when you take him out on location? “A It is always requested by the individual who is under arrest, if they wish to go on location and point out— “Q Point out what? “A Crimes they committed. “MR. WOOD: I am going to object to this, your Honor. “THE COURT: Sustained.” * # # * # # This line of questioning pursued by the prosecutor was a direct result of defense counsel bringing out the fact that the police took defendant for a ride thereby insinuating to the jury that defendant was pressured into confessing to the charges. It is well established that a defendant may not take advantage of an error which he himself induced. See Gagnon v. State, 212 So. 2d 337 (Fla. 3d DCA 1968); Castle v. State, 305 So. 2d 794 (Fla. 4th DCA 1974). In the case at bar, if error was committed then such error was stimulated and suggested by defense counsel who now cannot be heard to complain on appeal. We also note that although defense counsel objected to the complained of remarks, he failed to move for a curative instruction which is proper procedure. See Sullivan v. State, 303 So. 2d 632 (Fla.1974); Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974). We find no abuse of discretion on the part of the trial judge in not declaring a mistrial. Affirmed.
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McCRAE v. State, 395 So. 2d 1145 (Fla. 1980)…4 Jones on Evidence, Cross Examination of Witnesses § 25:3 (6th Ed. 1972) (footnote omitted). A defendant cannot take advantage on appeal of a situation which he has created at trial. See Sullivan v. State, 303 So. 2d 632 (Fla.1974); White v. State, 348 So. 2d 1170 (Fla. 3d DCA 1977); Jackson v. State, 336 So. 2d 633 (Fla. 4th DCA 1976). Appellant next argues that the trial court erred in admitting the testimony of four witnesses introduced by the state in its case in chief. Initially, appellant contends that…
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la Rocca v. State, 401 So. 2d 866 (Fla. 3d DCA 1981)…cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979) (appellant cannot initiate error, then seek reversal based on that error); Ellison v. State, 349 So. 2d 731 (Fla.3d DCA 1977), cert. denied, 357 So. 2d 185 (Fla. 1978); White v. State, 348 So. 2d 1170 (Fla.3d DCA 1977). Affirmed.…
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Sueiro v. State, 471 So. 2d 1317 (Fla. 3d DCA 1985)…ination question now at issue, the negative inference that there was no adverse fingerprint evidence. The matter having been first brought out at trial by his counsel, appellant may not complain on appeal of any error in this regard. White v. State, 348 So. 2d 1170 (Fla. 3d DCA 1977); see also Pope v. State, 441 So. 2d 1073, 1076 (Fla.1983). Furthermore, any error was harmless in view of the overwhelming evidence against the appellant. See State v. Murray, 443 So. 2d 955 (Fla.1984). Appellant’s other point c…
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
- Sullivan v. State, 303 So. 2d 632 (Fla. 1974)
- Darion Northrup Castle v. State, 305 So. 2d 794 (Fla. 4th DCA 1974)
- Adler v. Copa Corp., 212 So. 2d 337 (Fla. 3d DCA 1968)
- Diaz v. Warren, 303 So. 2d 369 (Fla. 3d DCA 1974)
- Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974)