County Criminal Court: CRIMINAL LAW Ė Jury trial Ė Introduction of certain cell phone evidence harmless error under the facts of this case. -Introduction of evidence of defendantís probationary status not error under the facts of this case.Ė Judgment affirmed. Arundel v. State, No. 03-1 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

JOSEPH JENNER ARUNDEL

 

††††††††††† Appellant,

 

Appeal No. CRC 03-1 APANO

UCN522003AP03000001XXXXCR

STATE OF FLORIDA

 

††††††††††† Appellee.

_______________________________/

 

 

Opinion filed _______________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Amy Williams

 

Ellis Rexwood Curry. IV, Esq.

Attorney for appellant

 

C. Marie King, Esq.

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

††††††††††† THIS MATTER is before the Court on Joseph Arundelís appeal from a judgment and sentence entered by the Pinellas County Court following a jury trial. After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† The defendant was convicted by a jury of reckless driving and giving false information about a traffic accident. He is appealing that conviction and judgment, claiming that his motion for mistrial should have been granted. He also claims that the trial court erred in admitting information from a cell phone bill into evidence.

††††††††††† The defendant succeeded in having the trial court grant in part his motion in limine to prevent the State from introducing information about him being on probation. The trial court permitted the State to elicit from one of the victims the fact that the defendant was on probation, and the State did so. Later during the trial, however, the State asked the defendantís mother if she knew her son was on probation. She said she did. Defense counsel objected and moved for a mistrial, claiming that the defendant had been unfairly prejudiced by the Stateís inquiry in violation of the courtís ruling on the motion in limine. The trial court ultimately denied the motion for mistrial, finding that the jury was already aware that the defendant was on probation because the State had properly elicited that information from one of the victims.

This Court agrees with the trial courtís decision. Any error in the Stateís inquiry was harmless given the fact that the jury had already been informed that the defendant was on probation. The State did not elicit why the defendant had been on probation, or otherwise elaborate beyond what the victim had already told the jury. A mistrial was not proper under these circumstances, and the trial courtís denial of the defendantís motion was correct.

††††††††††† Next, the defendant claims that the trial court erred in allowing information from a cell phone bill into evidence. Evidentiary rulings are reviewed under an abuse of discretion standard. Ray v. State, 755 So.2d 604 (Fla. 2000). This Court finds no abuse of discretion under the circumstances of this case.

A review of the record reveals that defense counsel, in arguing against the admission of the cell phone bill, stated: ďthe records custodian seems to be the proper person; secondarily, perhaps, Darrel Moore.ĒR.95. Defense counsel was indicating that a secondary witness, Darrell Moore--- the victimís grandfather, would be acceptable in authenticating the phone bill. The record reveals, however, that the victim would be in a better position to authenticate this bill because she testified that the bill, although in her grandfatherís name, was actually hers. It was her phone, she used it, and she paid the bill. Defense counselís acquiescence to the victimís grandfather as being acceptable to authenticate the bill instead of insisting that a recordís custodian from the telephone company testify, waived any argument he may have had about there being a lack of proper foundation. These records would not normally be admissible through this witness under ß90.803(6), Fla. Stat. (2003); however, the trial court did not abuse its discretion in admitting the cell phone bill into evidence under these circumstances. Moreover, any error was harmless given the facts of this case.†††

†††††††††††


IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2004.

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† James R. Case

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

†††††††††††††††††††††††††††††††††††

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Nancy Moate Ley

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

cc:State Attorney

 

†††††† Ellis Rexwood Curry, IV, Esq.

 

†††††† Judge Williams