BENNY MORTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Morton was convicted of cocaine sale based primarily on a confidential informant's testimony. The trial court erred in denying a mistrial motion after the informant improperly testified that Morton was widely known to be a drug dealer, as a curative instruction was insufficient to remedy the prejudicial impact of evidence of prior criminal activity.
The trial court erred in denying the mistrial motion. When a jury is improperly informed of a defendant's prior criminal activity or reputation, a curative instruction is frequently insufficient to preserve the defendant's right to a fair trial. The informant's testimony that 'a lot of folks' knew Morton was selling drugs was particularly prejudicial and could not be remedied by jury instructions.
[1] A mistrial is necessary to ensure a defendant receives a fair trial when a witness improperly informs the jury of the defendant's prior criminal activity.
[2] A curative instruction is insufficient to remedy prejudice when a witness improperly informs the jury that a defendant was known locally as a drug dealer.
Previewing 2 of 4 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“When a jury is improperly informed of a defendant's prior criminal activity, a curative instruction has frequently been found to be insufficient to preserve a defendant's right to a fair trial.”
Establishes the legal standard that curative instructions often fail to remedy prejudice from improper character evidence
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Join FLexlaw to unlock all legal intelligenceMorton was convicted of cocaine sale after a jury trial. The State's case relied on a confidential informant who testified he purchased crack cocaine …
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EVANDER, J.
Morton was convicted, after a jury trial, of sale of cocaine. The State’s primary witness was a confidential informant who had agreed to provide assistance to law enforcement after his own arrest for possession of cocaine. The confidential informant testified that he purchased two pieces of crack cocaine from Morton. The transaction occurred at a street corner with the confidential informant remaining in his car. The police officers supervising the confidential informant were not close enough to the intersection to observe the actual exchange. Although the confidential informant wore a wire, the recorded conversation was largely inaudible or indiscernible. The money allegedly given to Morton by the confidential informant was not recovered as Morton was not arrested until a later date.
During the confidential informant’s testimony, the following colloquy occurred:
PROSECUTOR: Can you tell the jury a little bit about how it came about that you thought you could buy some drugs from this particular person?
WITNESS: It was very clear that, you know [Morton] was selling drugs locally, and a lot of folks knew that, and I was able to have contact ...
Defense counsel immediately objected and, out of the presence of the jury, moved for a mistrial. The trial court declined to grant a mistrial, instead instructing the jury to disregard the witness’ answer. Morton renewed his motion for mistrial at the close of the State’s case and immediately prior to closing arguments.
The sole issue on appeal is whether the trial court erred in denying Morton’s motion for mistrial. The standard of review for a denial of a motion for mistrial is abuse of discretion. Goodwin v. State, 751 So. 2d 537 (Fla.1999). A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial. Power v. State, 605 So. 2d 856 (Fla.1992), cert, denied, 507 U.S. 1037, 113 S.Ct. 1863, 123 L.Ed.2d 483 (1993). When a jury is improperly informed of a defendant’s prior criminal activity, a curative instruction has frequently been found to be insufficient to preserve a defendant’s right to a fair trial. See, e.g., Coverdale v. State, 940 So. 2d 558 (Fla. 2d DCA 2006) (mistrial should have been granted after witness improperly commented that defendant had previously tried to molest witness’ daughter); Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004) (mistrial should have been granted after witness improperly commented that defendant had been “sent back to prison”); Henderson v. State, 789 So. 2d 1016 (Fla. 2d DCA 2000) (mistrial should have been granted after witness improperly commented that it appeared that defendant had committed prior robberies); Comatezer v. State, 736 So. 2d 1217 (Fla. 5th DCA 1999) (mistrial should have been granted after witness improperly commented that defendant was convicted felon).
Here, the witness improperly advised the jury that “a lot of folks” knew that Morton was a drug dealer. Evidence that a defendant has previously committed a similar crime is particularly prejudicial because of the risk that a juror will be predisposed to believe that the defendant is guilty of the charged offense. Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (1925). A curative instruction was simply insufficient to “unring the bell.” Comatezer, 736 So. 2d at 1218-19.
REVERSED and REMANDED for a new trial.
GRIFFIN and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brinson v. State, 153 So. 3d 972 (Fla. 5th DCA 2015)…be protected.” The trial court denied the motion, believing that the errors did not rise to the “level of a mistrial.” “A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial.” Morton v. State, 972 So. 2d 1088,1089 (Fla. 5th DCA 2008) (citing Power v. State, 605 So. 2d 856 (Fla.1992)). “In order to determine whether improper remarks constitute reversible error, they should be reviewed within the context of the closing argument as a whole and considered cu…
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Quesada v. State (Fla. 6th DCA 2026)…he co-defendant not only testified that he and appellant had previously burglarized cars, but he testified that they had done so 'forty or fifty times.' This was extremely prejudicial, as it painted appellant as a serial burglar."); Morton v. State, 972 So. 2d 1088, 1089 (Fla. 5th DCA 2008) (reversing conviction for sale of cocaine after confidential informant testified that "a lot of folks knew" the defendant was a drug dealer). Accordingly, on this record, we cannot say the trial court abused its discretion…1 / 2
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Vinceson Dawson v. State, 275 So. 3d 257 (Fla. 4th DCA 2019)
Authorities Cited
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Nickels v. State, 106 So. 479 (Fla. 1925)
- Power v. State, 605 So. 2d 856 (Fla. 1992)
- Henderson v. State, 789 So. 2d 1016 (Fla. 2d DCA 2000)
- Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004)
- Power v. Florida, 507 U.S. 1037 (U.S. 1993)
- Hall v. San Diego Cnty. Dep't of Soc. Servs., 507 U.S. 1037 (U.S. 1993)
- Cornatezer v. State, 736 So. 2d 1217 (Fla. 5th DCA 1999)
- Coverdale v. State, 940 So. 2d 558 (Fla. 2d DCA 2006)