EZEKIAL SIMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Simpson was convicted of second-degree murder. The Florida District Court of Appeal affirmed the conviction, holding that while the trial court made some evidentiary errors regarding hearsay testimony about police identification of photographs, these errors were harmless. The court also found the prosecutor's comments about the defendant's silence, though perilous practice, were not reversible error under the circumstances.
The trial court properly refused to require introduction of photographs and properly permitted testimony about the pretrial identification. The court erred in allowing hearsay testimony about police identification of the photograph, but this error was harmless. The prosecutor's comments affirming that the defendant's silence should not be considered against him, while perilous practice, were not reversible error and did not amount to sinister influence.
[1] A trial court does not err in refusing to require the State to introduce pretrial photographic displays as a predicate for in-court identification by a witness.
[2] A witness may testify that they identified the same person in a pretrial photographic display after making an in-court identification.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Jackson v. State, 45 Fla. 38, 34 So. 243 (1903), holds that a prosecutor may not for any purpose call to the jury's attention that the accused has not testified or insinuate guilt from his failure to do so.”
Establishes the rule against prosecutorial comment on defendant's silence, which the court found was not violated in this case.
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Join FLexlaw to unlock all legal intelligenceSimpson was convicted of second-degree murder. The State's principal witness identified Simpson in court, and before trial had been shown photographic…
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SMITH, Judge.
A conviction for murder in the second degree. The trial court did not err in refusing to require the State to introduce in evidence, as a predicate for the in-court identification of Simpson by the State’s principal witness, the photographs exhibited before trial to the witness. Nor did the court err in permitting the witness to testify, on questioning by the State after the in-eourt identification, that the witness had identified the same man in the pretrial photographic display. It was improper for the State to have been permitted to elicit, on redirect examination of the witness, his hearsay testimony that the police identified the photograph chosen as Simpson’s. But the police identification of the photograph as Simpson’s, after it was selected, is not shown to have tainted the witness’ selection of it or his in-court identification. The hearsay testimony at trial was error but, in the circumstances, was harmless. The prosecutor in summation to the jury stated:
. He [defense counsel] told you that the Defendant is never required to take the witness stand and that any comment I or the Court might make about that is absolutely wrong for us to do that, and he’s right in his stating the law to you in that way .
Jackson v. State, 45 Fla. 38, 34 So. 243 (1903), holds that a prosecutor may not for any purpose call to the jury’s attention that the accused has not testified or insinuate guilt from his failure to do so. Here the jury was first reminded that the accused did not testify by his counsel. It was perilous practice, but not error, for the prosecutor to affirm that the accused’s silence was not to be considered against him. There was no “sinister influence” in these particular remarks. Gordon v. State, 104 So. 2d 524, 540 (Fla.1958). There was no other reversible error in the prosecutor’s summation, although we admonish him — Mr. Richard D. Nichols — that his reference to “one of the favorite tricks of a defense lawyer” was a gratuitous insult to the adversary system of justice which he serves. Cochran v. State, 280 So. 2d 42 (Fla. 1st DCA 1973).
AFFIRMED.
MILLS, Acting C. J., and ERVIN, J., concur.
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Cited By (12 total)
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The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)…ooking the possibility of P. D. and could be subjected to a malpractice claim as a result of such oversight. .See Cochran v. State, 280 So. 2d 42, 43 (Fla. 1st DCA 1973) (prosecutor’s argument about “how defense lawyers operate”); Simpson v. State, 352 So. 2d 125, 126 (Fla. 1st DCA 1977) (prosecutor’s reference to “one of the favorite tricks of a defense lawyer”); Carter v. State, 356 So. 2d 67 (Fla. 1st DCA 1978) (prosecutor’s argument that “[s]he’s been appointed to be the defendant’s mouthpiece . . It’s a…
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Barnes v. State, 743 So. 2d 1105 (Fla. 4th DCA 1999)…trial. The impropriety of a prosecutor disparaging or denigrating the person of defense counsel is now well established. See Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984); Cochran v. State, 280 So. 2d 42 (Fla. 1st DCA 1973); Simpson v. State, 352 So. 2d 125 (Fla. 1st DCA 1977); Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA [*1107] 1981); Melton v. State, 402 So. 2d 30 (Fla. 1st DCA 1981); Westley v. State, 416 So. 2d 18 (Fla. 1st DCA 1982); McGee v. State, 435 So. 2d 854 (Fla. 1st DCA 1983). This court…
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Westley v. State, 416 So. 2d 18 (Fla. 1st DCA 1982)…se counsel’s argument, rather than intended to convey any impression of improper motives or tactics of defense counsel. We conclude that this argument was similar to those in Cochran v. State, 280 So. 2d 42 (Fla. 1st DCA 1973), and Simpson v. State, 352 So. 2d 125 (Fla. 1st DCA 1977), which were held harmless. The trial judge heard the remarks, the tone and manner in which they were uttered, and did not consider the argument pejorative. We agree that the comments were not such as to “cast aspersions on the mo…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gordon v. State, 104 So. 2d 524 (Fla. 1958)
- Cochran v. State, 280 So. 2d 42 (Fla. 1st DCA 1973)
- Will Jackson v. State, 45 Fla. 38 (Fla. 1903)