Opinion
No. 82-2451.
October 11, 1983.
Appeal from the Circuit Court, Dade County, Maria M. Korvick, J.
Bennett Brummer, Public Defender and Stuart Mishkin, Sp. Asst. Public Defender, John H. Lipinski, Miami, for appellant.
Jim Smith, Atty. Gen. and Michael T. Neimand, Asst. Atty. Gen., for appellee.
Before BARKDULL and DANIEL S. PEARSON and JORGENSON, JJ.
Costales appeals his convictions and sentences entered pursuant to a jury verdict finding him guilty of three counts of robbery and burglary of a structure.
At trial, Detective Smith testified, regarding a photo lineup, that upon receiving a description of the perpetrator of the crime from the victim, he investigated other cases and put together the photographic lineup from which the victim identified the defendant. The defendant moved for a mistrial on the basis that said testimony implies the defendant has a criminal background and as such was inadmissible, improper and constituted reversible error. On appeal the sole point raised was error in denial of the motion for mistrial.
This appeal is without merit and the order of the trial court is affirmed on the authority of Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); Willis v. State, 208 So.2d 458 (Fla. 1st DCA 1968).
Affirmed.
I think it is time to make clear that the probative value, if any, of testimony concerning the source of a defendant's picture in a photographic lineup is always outweighed by its potential for prejudice when that testimony reveals the source to be another investigation, Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); mug shots, Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); police files, Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); or, as here, the investigation of other cases. Such testimony is therefore inadmissible. Neither this decision nor our cited recent decisions holding that any error in admitting such testimony can be cured by an appropriate instruction or, as in Williams, by explanatory testimony, are to be construed by prosecutors as invitations to commit the error or as affecting the prosecutor's obligation to avoid deliberately eliciting such testimony so as to tip the scales against a defendant. See Molina v. State (Fla. 3d DCA 1983) (Case No. 82-870, opinion filed October 4, 1983) (Pearson, J., concurring).
In the present case, the defendant did not object to the testimony when it was adduced. Much later when he moved for a mistrial, the trial court told him that had he timely objected, the court would have sustained the objection and given a curative instruction to the jury. The court then offered to give a belated curative instruction, and the defendant, persisting in his motion for mistrial, rejected the offer. I fully agree with the majority that the defendant was not entitled to a mistrial.
JORGENSON, J., concurs with DANIEL S. PEARSON, J.