Summary
In Kelly v. State, 360 So.2d 77, 77 (Fla. 4th DCA) (mem.), cert. denied, 364 So.2d 887 (Fla. 1978), Judges Downey and Cross confronted a composite sketch of a codefendant mistakenly sent into the jury room after it had been rejected as evidence.
Summary of this case from State v. HamiltonOpinion
No. 77-76.
May 2, 1978. Rehearing Denied June 7, 1978.
Appeal from the Circuit Court for Broward County; Louis Weissing, Judge.
Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, and Nikki Ann Clark, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Paul H. Zacks and John Cecilian, Asst. Attys. Gen., West Palm Beach, for appellee.
Affirmed.
DOWNEY, C.J., concurs specially, with opinion in which CROSS J., concurs.
DAUKSCH, J., dissents with opinion.
A composite drawing of appellant was admitted into evidence at the trial. Appellant also offered in evidence a composite drawing of a co-defendant, but it was rejected. Through inadvertence the rejected composite found its way into the jury room together with the other properly admitted exhibits. Without the first suggestion of any prejudice accruing therefrom, appellant seeks reversal of his conviction because the jury was able to consider a composite of a co-defendant which appellant unsuccessfully attempted to have admitted into evidence. Surely it was error to allow the non-admitted exhibit into the jury room, but harmless within the meaning of Section 59.041, Florida Statutes (1977).
Accordingly, I agree that the judgment appealed from should be affirmed.
I respectfully dissent. The trial judge sent to the jury room a composite drawing of a face which drawing was not in evidence. Whether or not the jury was improperly motivated to convict the Appellant is not for me to say. I cannot know if the Appellant was injured by this error but it is error. Smith v. State, 95 So.2d 525 (Fla. 1957). F.R.Crim.Prac. 3.400(d). State ex rel. Pryor v. Smith, 239 So.2d 85 (Fla. 1 DCA 1970).
I would reverse for a new trial.