MARIO MANCEBO AND JORGE MANCEBO, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Mario and Jorge Mancebo appealed their convictions for aggravated battery by billiard ball, raising multiple trial errors including improper cross-examination about prior fights, prosecutor's closing arguments about character, admission of mug shots, and admission of the weapon. The appellate court rejected all arguments and affirmed the convictions.
The trial court did not abuse its discretion because defendants placed their character for lawfulness in issue by introducing good character evidence, making cross-examination on that topic relevant and non-prejudicial. The prosecutor's closing arguments were fair comments within the bounds of evidence, and the admission of mug shots was harmless error under the circumstances, including the trial judge's precautions in cropping the photographs. The admission of the billiard ball was without merit.
[1] A trial court has broad discretion in controlling cross-examination, and its decisions will not be reversed absent a clear abuse of that discretion.
[2] When a defendant places their character for lawful conduct into issue, the State may introduce evidence or ask questions relating to that character on cross-examination.
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Join FLexlaw to unlock all legal intelligence“As a general rule, wide latitude is permitted on cross examination, the scope and limitation of which lies within the sound discretion of the trial judge, and is not subject to review except for a clear abuse.”
Establishes the standard of review for cross-examination discretion and the high bar for appellate reversal.
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Join FLexlaw to unlock all legal intelligenceMario and Jorge Mancebo were tried by jury for aggravated battery using a billiard ball. Both defendants testified and introduced evidence of good cha…
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PER CURIAM.
Mario Mancebo and Jorge Mancebo were charged by information with aggravated battery by use of a billiard ball. Both defendants were tried by jury, found guilty as charged, convicted and sentenced to 15 years imprisonment. The points raised on appeal include that the trial court erred in failing to grant a mistrial where, over defendants’ objections, the State elicited testimony concerning prior fights, and where the State commented during closing argument on the defendants’ bad characters and propensities for violence.
The record reflects that when each defendant testified on his own behalf, his counsel brought out evidence of good character for lawful conduct. On cross examination of Mario, the prosecutor proceeded to ask whether Mario had been involved in fights before, whereupon defense counsel made a motion for mistrial which was de nied. The prosecutor later clarified the inquiry to relate to the night in question.
As a general rule, wide latitude is permitted on cross examination, the scope and limitation of which lies within the sound discretion of the trial judge, and is not subject to review except for a clear abuse. Matera v. State, 218 So. 2d 180, 183 (Fla. 3d DCA 1969). As defense counsel voluntarily introduced evidence tending to show the defendants’ good character for lawful conduct, their good character was placed in issue. See Kite v. State, 126 Fla. 77, 170 So. 445 (1936). Thus, where defendants placed their character for lawfulness in issue, questions relating thereto on cross examination were relevant and non-prejudicial. No abuse of the court’s discretion has been demonstrated in the denial of the motion for mistrial. Compare Lawson v. State, 304 So. 2d 522 (Fla. 3d DCA 1974).
Next, Jorge contends that as he and Mario were depicted as close cousins, Mario’s admissions infected Jorge’s trial with prejudice. No such objection having been raised at trial, however, the error is not properly preserved for appellate review. State v. Barber, 301 So. 2d 7, 9 (Fla.1974), and cases cited therein.
As to the contention that the court erred in not granting a mistrial based on comments in the prosecutor’s closing argument, the record reflects that no motion for mistrial was made at the time of the comments complained of. Therefore, the court could not have erred in failing to grant a mistrial. Thomas v. State, 326 So. 2d 413 (Fla.1975). In addition, we find that the statements were fair comments within the bounds of the evidence. See Spencer v. State, 133 So. 2d 729, 731 (Fla.1961); Johnsen v. State, 332 So. 2d 69 (Fla.1976). The proper remedy, if any, would have been to request the trial court to make a corrective instruction. Mabery v. State, 303 So. 2d 369, 370 (Fla. 3d DCA 1974).
The defendants further contend that the court erred in admitting into evidence mug shots of them where identity was not at issue, and where the mug shots served no useful purpose except to prejudice the defendants by implying that they had been guilty of prior unrelated crimes. Generally, reference to mug shots does not require an automatic reversal; rather, the question must be resolved on the basis of the entire record and surrounding circumstances under which the photographs were introduced. Loftin v. State, 273 So. 2d 70, 71 (Fla.1973). See also Williams v. State, 233 So. 2d 428 (Fla. 3d DCA 1970). Our examination of the entire record and surrounding circumstances in this case, including the precautions taken by the trial judge in “cropping” the photographs, reveals that the introduction of the photographs was harmless, at most, and that there was no error committed that injuriously affected the substantial rights of the defendants.
The final point on appeal, which concerns the admission into evidence of the billiard ball, is without merit.
For the reasons stated and on the authorities cited, the judgments of conviction and sentences of both defendants are
Affirmed.
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Cited By (11 total)
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Sireci v. State, 399 So. 2d 964 (Fla. 1981)…latitude is permitted on cross-examination in a criminal proceeding, the scope and limitation of which lies within the sound discretion of the trial court and is not subject to review except for a clear abuse [*970] of discretion. Mancebo v. State, 350 So. 2d 1098 (Fla. 3d DCA 1977), cert. denied, 359 So. 2d 1217 (Fla.1978). The defendant has failed to show any abuse of discretion on the part of the trial court. Detective Nazurchuk testified concerning the interrogation of the defendant shortly after he was…
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Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982)…ry 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 destroying an alibi defense by showing that the defen…
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McCALL v. State, 463 So. 2d 425 (Fla. 3d DCA 1985)…n 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 (Fla.1982). Cf. Harris v. State, 427 So. 2d 234 (Fla. 3d DCA 1983) (detective’s testimony that defendant had prior felony past inadmissible and not…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Emmitt Monroe Spencer v. State, 133 So. 2d 729 (Fla. 1961)
- Matera v. State, 218 So. 2d 180 (Fla. 3d DCA 1969)
- Thomas v. State, 326 So. 2d 413 (Fla. 1975)
- Loftin v. State, 273 So. 2d 70 (Fla. 1973)
- Johnsen v. State, 332 So. 2d 69 (Fla. 1976)
- Diaz v. Warren, 303 So. 2d 369 (Fla. 3d DCA 1974)
- Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974)
- Lawson v. State, 304 So. 2d 522 (Fla. 3d DCA 1974)
- Williams v. State, 233 So. 2d 428 (Fla. 3d DCA 1970)