MERLIN EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Evans appeals his conviction for assault with intent to commit robbery, claiming the trial judge erred in denying his mistrial motion after the prosecutor made a prejudicial remark implying Evans' counsel fabricated an alibi defense. The court affirmed, holding that the prosecutor's comment, made in retaliation to defense counsel's improper questioning, was not fundamental error where a curative jury instruction was given.
The court held that the prosecutor's remark, while perhaps improper, did not constitute fundamental and prejudicial error warranting a mistrial, particularly where the trial judge gave a curative instruction to the jury to disregard the comment and where the comment was made in retaliation to the defendant's counsel's improper questioning.
“We were wondering about that point too.”
The prosecutor's remark that defense counsel objected to as prejudicial, implying the alibi defense was fabricated.
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Join FLexlaw to unlock all legal intelligenceEvans was convicted of assault with intent to commit robbery. During trial, defense counsel asked an investigating officer why he could not find a cer…
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This is an appeal by the defendant of a conviction of assault with intent to commit robbery.
The sole point on appeal is whether the trial judge erred in denying defendant’s motion for mistrial. The motion was made as a result of a comment made by the prosecuting attorney in the presence of the jury during cross examination of one of the investigating officers. Defense counsel had asked the officer why he could not find a certain alibi witness when in fact defense counsel had found her. Whereupon the prosecuting attorney remarked, “We were wondering about that point too.” Defense counsel objected to the prosecutor’s remark and moved for a mistrial on the grounds that it was prejudicial and in violation of the defendant’s constitutional rights. The court denied the motion and instructed the jury to disregard the comment of the prosecutor.
It is appellant’s contention that the remark of the prosecutor clearly implied that defense counsel had deliberately fabricated an alibi defense, and that the remark constituted such fundamental and prejudicial error that the trial judge’s cautionary instruction could not cure the error and a mistrial should have been granted. We find no basis for a mistrial and affirm.
The record discloses that prior to the remark complained of defendant’s counsel attempted to discredit the arresting officers as to their efforts to locate the alibi witness.
Where the defendant’s counsel has. asked a highly improper question and the prosecutor replies, defendant’s claim of foul will not usually entitle him to a mistrial. In Henderson v. State,1 the Supreme Court said:
“* * * [W]e cannot afford to lay down a rule here which would make it hereafter possible for an attorney for the defendant in any hard fought criminal case to deliberately goad the state’s attorney, by unfounded or improper charges and insinuations, into heated, indiscreet, and improper reply, and to then use such reply to secure a reversal of the case, regardless of the sufficiency of the evidence, thus enabling him to take advantage of his own wrong. This would, indeed, be a dangerous precedent.” 2
The courts have given wide latitude to comments made by counsel during the heat of trial, especially when made in retaliation to prior improper comments by opposing counsel, and have been most reluctant to reverse convictions as a result thereof, particularly where the trial judge, as in the instant case, instructs the jury to disregard the comment.
No reversible error appearing, the judgment and sentence appealed is affirmed.
Affirmed.
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Citator
Cited By
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Baisden v. State, 203 So. 2d 194 (Fla. 4th DCA 1967)…as well as by good manner, as well as by the court. Where the defendant’s counsel has asked highly improper questions and the prosecutor replies, defendant’s claim of foul will not usually entitle him to a mistrial. See Evans v. State, Fla.App.1965, 178 So. 2d 892. It stands to reason then, where the defense counsel repeatedly disregards the court’s instruction, then his claim of foul when his hands are slapped will fall on deaf ears, and this court is reluctant to overturn a trial judge’s action and reverse…
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Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)…ere in reply to an argument made by defense counsel and, even if they were objectionable [which we do not so find], they were fair comment and reply to the defense’s argument. Whitney v. State, Fla.1961, 132 So. 2d 599; Evans v. State, Fla.App.1965, 178 So. 2d 892; Sadler v. State, Fla.App.1969, 222 So. 2d 797. The other comments objected to when made were the subject of an objection by defense counsel, which at all times were sustained by the trial court. No request for an instruction to disregard the remark…
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Schwarck v. State, 568 So. 2d 1326 (Fla. 3d DCA 1990)…invited response to an improper argument by the defense. It is well established that counsel is accorded a wide latitude in making arguments to the jury particularly in retaliation to prior improper comments made by opposing counsel. Evans v. State, 178 So. 2d 892 (Fla. 3d DCA 1965); Pitts v. State, 307 So. 2d 473 (Fla. 1st DCA), cert. dismissed, 423 U.S. 918, 96 S.Ct. 302, 46 L.Ed.2d 273 (1975). Affirmed.…
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- Henderson v. State, 94 Fla. 318 (Fla. 1927)