Goodwin v. StateGoodwin v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, Judge.
In describing the function of Broward County Sheriff‘s Office‘s Street Crime Unit during appellant‘s trial for delivery of cocaine, one of the testifying officers explained that the officer “goes into the areas that are known for street level drug sales and he tries to make buys from street level dealers.” Appellant‘s counsel objected to the comment on the grounds that “he‘s talking about that they‘re targeting dealers, that the guys drive around because they‘re out to catch dealers.” The trial court sustained the objection and gave a curative instruction to disregard the comment, but reserved its ruling on the motion for mistrial until after the trial, at which time the motion was denied based on Watson v. State, 672 So.2d 71 (Fla. 4th DCA), rev. denied, 679 So.2d 775 (Fla.1996).
Our review of the record convinces us that this single comment was not “unduly prejudicial,”
We distinguish Wheeler v. State, 690 So.2d 1369 (Fla. 4th DCA 1997), Sherrod v. State, 582 So.2d 814 (Fla. 4th DCA 1991), Hutchinson v. State, 580 So.2d 257 (Fla. 1st DCA 1991), Black v. State, 545 So.2d 498 (Fla. 4th DCA 1989), and Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978), in which “bad neighborhood” comments combined with either improper prosecutorial remarks or additional bad neighborhood testimony from other witnesses constituted reversible error. However, we acknowledge that in Dorsey v. State, 639 So.2d 158 (Fla. 1st DCA 1994), and Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991), a single “bad neighborhood” reference constituted reversible error. We note that both cases were decided prior to the enactment of
FARMER, J., concurs.
KLEIN, J., concurs specially with opinion.
KLEIN, Judge, concurring specially.
I fully agree with the majority opinion and am writing only to explain more fully why we are not citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986) as authority to determine whether the error is harmless, but rather
In a direct appeal or a collateral proceeding, the party challenging the judgment or order of the trial court has the burden of demonstrating that a prejudicial error occurred in the trial court. A conviction or sentence may not be reversed absent an express finding that a prejudicial error occurred in the trial court.
As the United States Supreme Court observed in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), harmless error statutes were adopted by the states, as well as Congress1, in the early part of this century, as a reaction to widespread dissatisfaction with appellate courts routinely reversing criminal convictions. The Kotteakos court quoted a 1925 article suggesting that appellate courts towered “above the trials of criminal cases as impregnable citadels of technicality.” Id. at 759, 66 S.Ct. at 1245.2
In Kotteakos the Court, in addressing the federal harmless error statute, was careful not to ascribe any burden to one side or the other, although it noted that the legislative history reflected that Congress intended for the burden to be on the appellants for technical errors, but on beneficiaries of the errors for substantive ones. Id. at 765, 66 S.Ct. at 1248.
The most important federal decision pertinent to this analysis is Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
Significantly, after announcing the “harmless beyond a reasonable doubt” test for federal constitutional error in Chapman, the Court observed that “appellate courts do not ordinarily have the original task of applying such a test.” 386 U.S. at 24, 87 S.Ct. at 828. The Chapman Court also noted that every state had a harmless error statute or rule and that they “serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Id. at 24, 87 S.Ct. at 828. Chapman, along with the fact that the federal constitution does not require states to grant appeals to criminal defendants3, leads me to conclude that the burden established by
This brings us to DiGuilio. Shortly before DiGuilio, the Florida Supreme Court concluded in State v. Murray, 443 So.2d 955 (Fla.1984), that the appropriate test for determining whether error is prejudicial or harmless was the rule established by the United States Supreme Court in Chapman. In Murray, however, the error was not one which violated the defendant‘s rights under the federal constitution. As a result of confusion between Murray and other Florida Supreme Court decisions, the fifth district in DiGuilio certified a question of great public importance as to whether a comment on the right to silence, a constitutional violation, was per se reversible error.
At the time DiGuilio was decided
No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.
The DiGuilio court observed:
Section 924.33 respects the constitutional right to a fair trial free of harmful error but directs appellate courts not to apply a standard of review which requires that trials be free of harmless errors. The authority of the legislature to enact harmless error statutes is unquestioned. Contraposed to this legislative authority, the courts may establish the rule that certain errors always violate the right to a fair trial and are, thus, per se reversible. To do so, however, we are obligated to perform a reasoned analysis which shows that this is true, and that, for constitutional reasons, we must override the legislative decision. (footnote omitted).
The DiGuilio court then went on to adopt, for constitutional errors, the same standard adopted by the United States Supreme Court in Chapman, setting it out as follows:
The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
Returning to
Finally, it is at least worth mentioning that just as civil judgments are presumed correct on appeal, so are criminal convictions. Spinkellink v. State, 313 So.2d 666 (Fla. 1975). In light of that presumption, as well as the deference given the legislature regarding harmless error statutes by both the Chapman and DiGuilio courts, I agree that
ON MOTION FOR REHEARING
PER CURIAM.
We deny rehearing but certify the following question as one of great public importance:
IN APPEALS WHICH DO NOT INVOLVE CONSTITUTIONAL ERROR, DOES THE ENACTMENT OF SECTION 924.051(7), FLORIDA STATUTES, ABROGATE THE HARMLESS ERROR ANALYSIS ANNOUNCED IN DIGUILIO V. STATE [STATE V. DIGUILIO], 491 So.2d 1129 (Fla.1986)?
WARNER, FARMER and KLEIN, JJ., concur.
Notes
On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.
It is in essentially the same form today but is now found at 28 U.S.C. § 2111.