Harmon v. State

394 So. 2d 121
CourtDistrict Court of Appeal of Florida
DecidedMay 9, 1980
DocketLL-336
StatusPublished
Cited by14 cases

This text of 394 So. 2d 121 (Harmon v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harmon v. State, 394 So. 2d 121 (Fla. Ct. App. 1980).

Opinion

394 So.2d 121 (1980)

Linda HARMON, Appellant,
v.
STATE of Florida, Appellee.

No. LL-336.

District Court of Appeal of Florida, First District.

May 9, 1980.

*122 Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender for appellant.

Jim Smith, Atty. Gen. and Lee Mandell, Asst. Atty. Gen., for appellee.

LARRY G. SMITH, Judge.

Linda Harmon appeals her conviction of robbery with a weapon. Although numerous grounds for reversal are presented, all of which we have considered, we find it necessary to elaborate upon only three of these in reaching our decision to reverse the conviction.

Appellant's counsel objected to statements made by the prosecuting attorney during voir dire examination of the jury, and moved for a mistrial, which was denied. The complained of activity began during the initial stages of jury selection, after six prospective jurors had been seated and generally examined, at which time the prosecuting attorney addressed the jury collectively, as follows:

Now, I want to ask you this question and, normally, we don't go into the facts of the case and I don't intend on going into the facts of this particular case but I think it is important to tell you what I would anticipate some of the evidence may be in this case and ask how it's going to affect you.
Now, testimony will be elicited, I think that the defendant some four days prior to her being interviewed by robbery detectives in this case was arrested by a uniformed police officer and that after this particular arrest and while being transported to the jail, she performed a sexual act on this officer in hopes of lenient treatment. I believe that is what the testimony is going to be. That has nothing to do with the armed robbery. What I want to know is this: Now, certainly, this action is abhorrent to me and all right — thinking people and can't be tolerated.

Defense counsel's objection, motion for mistrial, and the court's ruling were as follows:

MR. WILLIAMS: Your honor, I object to this dialogue by Mr. Greene. I believe its improper and I believe the phraseology as to the state of facts would be improper for the purpose of voir dire and, at this time, I would move it be stricken from the record and also move for a mistrial.
THE COURT: I will deny your motion for a mistrial and I would indicate that it is proper for voir dire because if it does come out, it will be important to know what feelings the jurors might have about it, both from the state's standpoint and the defendant's standpoint.

The prosecuting attorney continued:

Thank you. Now, what I want to know is this: if you believe that is true, ... I want to know whether or not you will be able to — I want to know one or two things: whether or not that fact, the fact that happened and you believe it did happen between this uniformed officer and this woman, would that — and the police officer, by the way, is not the victim of this robbery in any way, shape or form — would that fact so automatically affect you that you would be unable to return a verdict of guilty, even if you believe the defendant were guilty? Would you still be able to return a verdict of guilty if you believe the defendant was in fact guilty of armed robbery on the victim, Michele Zappone? ...

After receiving the assurance of each individual juror that they would be able to find the defendant guilty, the prosecuting attorney rephrased the question as follows:

In other words, and I will phrase it a different way: I represent the State of Florida. I work for the State of Florida. The police in Jacksonville work for Jacksonville. They are part of the Jacksonville Sheriff's Office. What I want to know in essence, I am asking you: would that act by that police officer so offend you that you'd take it out on the State of Florida and find her not guilty, even if you believe she was guilty? You wouldn't do that, would you?

During a side bar conference shortly after the above quoted statement, defense counsel renewed the motion for mistrial, stating:

*123 Your honor, at this time, I would ask for a mistrial. He's told them she's been arrested by uniformed police and has said that incident has nothing to do with the robbery charged before the issue has even been raised by the testimony and he's bringing in evidence of a collateral, unrelated crime and, at this time, I would move for a mistrial.
THE COURT: All right. The motion is denied.

At a sidebar conference which followed the above mentioned ruling, the prosecuting attorney made clear the state's position, which was that since defense counsel, prior to trial, had announced his intention to present evidence of the sexual assault in defense, and the court had denied the state's motion in limine to prohibit the use of such evidence, the state felt fully justified in addressing questions on the issue to the jury on voir dire. The trial court fully agreed with the state's position.

The voir dire examination continued, during which defense counsel also referred to the sex incident, but to a far lesser extent, and in less graphic detail than the prosecuting attorney. The prosecuting attorney repeatedly restated the facts and renewed the question, stressing from time to time that the arrest incident had nothing to do with the robbery, and that defendant's participation was in furtherance of her desire to receive favorable treatment through the assistance of the police officer. The sex episode easily became the feature of voir dire examination, the record of which consumed some 135 pages of the transcript, followed by the trial which contained only about 110 pages of testimony. The issue demonstrably engaged the interest of the jurors. Their attention was focused on little else, so far as the particulars of the case were concerned, during the entire jury selection process. Several jurors individually responded to questions concerning the incident, and some were excused because of their display of concern, one way or the other, as to how their view of the case might be affected.

The statements and questions by the prosecuting attorney were improper, prejudicial, and grounds for reversal. The rules governing questions on voir dire are stated in the early case of Dicks v. State, 83 Fla. 717, 93 So. 137 (1922), at 137:

Prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced.
To propound to a juror a question purporting to contain an epitome of the testimony subsequently to be introduced, and ask whether he would acquit or convict upon such testimony, would have the effect of ascertaining his verdict in advance of his hearing the sworn testimony of the witnesses.
Such a procedure would revolutionize jury trials.

In Smith v. State, 253 So.2d 465 (Fla.

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Bluebook (online)
394 So. 2d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harmon-v-state-fladistctapp-1980.