IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

RAYMOND SMITH,

            Appellant,

vs.                                                                   Appeal No. CRC 99-20781 CFANO

STATE OF FLORIDA,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from a decision of the

Pinellas County Court

County Judge Thomas B. Freeman

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellant

C. Marie King, Esq.
Assistant State Attorney
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE is before the Court on the Defendant’s appeal from the verdict, judgment and sentence entered by the Pinellas County Court following a jury verdict of guilty of battery.  After reviewing the briefs and record, this Court affirms the decision of the trial court denying Defendant’s motion for mistrial.

Before trial, the court granted the Defendant’s motion in limine excluding any evidence or testimony regarding cocaine.  During defense counsel’s cross-examination of the victim, Ms. Carlson, defense counsel asked if she remembered a phone call in which she told the defense counsel how she felt about the Defendant.  Ms. Carlson replied that she wished the Defendant would get anger management classes.  Defense counsel then asked Ms. Carlson if she had told him that she was afraid that the Defendant was going to leave her for somebody else.  Ms. Carlson denied saying this.  Defense counsel pressed further by asking Ms. Carlson whether she had told him that she was afraid that the Defendant was “messing around with someone else?” Ms. Carlson responded by stating exactly what she had said to him during this phone conversation; “No, I said during our relationship that he was selling cocaine, that he was out messing around.”  Defense counsel objected to this answer and moved for a mistrial.  The court denied the motion on the basis that defense counsel elicited the response, invited the error, and did not ask the correct question. The court then gave the following curative instruction, “Ladies and gentlemen, disregard the answer to the last question.” Defense counsel then renewed the previous request for mistrial on two occasions, both of which the court denied.  The issue was also raised in a motion for new trial, and again, the judge denied it.

The abuse of discretion standard applies when reviewing an order granting or denying a motion for mistrial.  See Cole v. State, 701 So.2d 845 (Fla. 1997); Starling v. State, 760 So.2d 237 (Fla. 2nd DCA 2000).  Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.  Trease v. State, 2000 WL 1158129 (Fla. 2000).

Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.  Terry v. State, 668 So.2d 954 (Fla. 1996).  In short, our analysis focused on whether the witness’s answer was responsive to the question and whether counsel could have anticipated the witness’s response.  Id. at 962.  Defense counsel in this case asked Ms. Carlson, the victim, on cross-examination, repeatedly about the contents of a conversation previously held between defense counsel and the victim.  Ms. Carlson’s answers were directly related and responsive to the line of questioning by defense counsel as to what the victim had told defense counsel about the victim’s concerns with the defendant. Furthermore, defense counsel asked Ms. Carlson if she had told him that she was afraid that the defendant was going to leave her for somebody else.  After Ms. Carlson denied saying this, the defense counsel attempted to pinpoint exactly what was said by the victim during that previous conversation by asking whether she had told him that she was afraid that the defendant was “messing around with someone else?”  It was then that Ms. Carlson testified exactly what she had said to him during this phone conversation by responding, “No, I said during our relationship that he was selling cocaine, that he was out messing around.”  Clearly, defense counsel by repeatedly asking and trying to pinpoint exactly what was said during the previous conversation could have anticipated Ms. Carlson responding by repeating exactly what she had said during that previous conversation.

We therefore find that the trial court did not abuse its discretion in denying Defendant’s motion for mistrial as the Defendant invited the error complained of. Furthermore, we find that after the error was invited by defense counsel, the trial judge gave the jury timely and proper curative instructions.

It is therefore,

ORDERED AND ADJUDGED that this Court affirms the decision of the trial court denying the Defendant’s motion for mistrial.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 5th day of October, 2000.

 

  __________________________
CHARLES W. COPE
Circuit Judge
Primary Appellate Judge


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge
 

                                                           

Copies furnished to:

The Honorable Thomas B. Freeman

Joy K. Goodyear, Esq.
Assistant Public Defender
Criminal Justice Center
14250 49th Street North
Clearwater, Florida 33762

C. Marie King, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, FL 33758