Ruiz v. StateRuiz v. State
Armodio Ruiz was chаrged by information with carrying a concealed firearm and possession of a firearm by a convicted felon in viоlation of
The controlling question for rеview is whether a curative instruction to the jury assured Ruiz of a fair trial by sufficiently dispelling the prejudicial effect of cеrtain remarks made by the prosecutor in his opening statеment. We find that it did not.
Ruiz was arrested for not having a valid driver‘s license after the truck which he had been driving struck a parked vehicle. Ruiz‘s brother was a passenger in the truck. The poliсe officer found a loaded .357 magnum under the driver‘s seat аnd a pistol under the passenger‘s seat.
In the opening argument to the jury the prosecutor stated:
“[Ruiz] was placed under arrest for two items; one was no valid driver‘s license because he did not show a driver‘s license to the police officer when he was asked to produce one. In fact, at this particular point, the defendant gave his name as
Jose Rodriguez and subsequently, after running a vehicle сheck on the tag, he was placed under arrest for auto theft because the truck was reported stolen.”
Ruiz оbjected to the statement of arrest for auto theft аnd moved for mistrial pursuant to
“THE COURT: Ladies and Gentlemen of the Jury, this defendant is only on trial for the crimes charged in the Infоrmation.
As the attorneys stated and as the Court earlier stated, what the attorneys are saying now in their opening statements are not evidence and it is not to be considerеd by you in arriving at a verdict. Any reference to the ownershiр of the automobile in question is really not a matter for yоur consideration and it is not relevant to this case.
Can еach and every one of you set aside that matter, put it out of your mind, in accordance with my instructions?
Will you all be аble to do that? I see that each of you are shaking your heads in the affirmative.”
Ruiz moved for mistrial subsequent to this instruction аnd repeated the motion at the close of the stаte‘s case and at the close of all evidence. The court denied each motion.
It is settled Florida law thаt a new trial may be ordered if a court‘s instruction to the jury fails to dispel the likelihood that statements made by a prosecutor will prejudice the jury in its duty to presume the defendant innocent and to weigh impartially the evidence. Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977); Groebner v. State, 342 So.2d 94 (Fla. 3d DCA 1977). See, e.g., Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979) and cases cited therein.
In the рresent case, we find the court‘s instruction did not assure Ruiz of а fair trial. The court‘s statement that Ruiz was on trial only for crimes in the information and the request that the jury disregard the prosecutor‘s statement that Ruiz had been arrested for driving a vehicle reported stolen failed to destroy the likelihood of jury prejudice against Ruiz. Oglesby, supra.
Reversed and remanded for a new trial.