County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial Comment –In a loitering and prowling prosecution, the State’s reference to the location of the alleged offense as a “high crime area” was not error because it was relevant to prove a material fact, and was not unduly prejudicial to the defendant.  Judgment and sentence affirmed. Hart v. State, No. CRC 06-68 APANO, (Fla. 6th Cir. App. Ct. October 30, 2007).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

JOHNNY LEE HART

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-68 APANO

UCN 522006AP00068XXXXCR

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge John Carassas

 

Ryan Thomas Truskoski, Esquire

Attorney for appellant

 

Justin S. Peterson, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on Defendant, Johnny Lee Hart’s appeal from a conviction, after a jury trial, of loitering or prowling, a second degree misdemeanor, in violation of § 856.021 Fla. Stat. (2006).  The Defendant argues that his right to a fair trial was violated when the State was allowed, over defense objection, to repeatedly refer to the area where he was arrested as a “high crime area”.

 

Factual Background and Trial Court Proceedings

            Officer William Hodgson of the Clearwater Police Department observed the defendant, Johnny Lee Hart, behind the Food Mart on North Martin Luther King Avenue in Clearwater at 3:45 a.m. on the morning on February 1, 2006. The Defendant was standing in the shadows and immediately took flight when he saw the police cruiser.  Officer Hodgson told Defendant to stop, but the defendant kept running.  The officer pursued the Defendant behind two businesses.  The Defendant was caught and arrested.  The Defendant said he ran because he was not sure what law enforcement wanted him for, and because he got into trouble recently and the police may want him about that. On cross examination at trial the officer described the involved area as “a popular area for illegal activity”.

            Prior to trial, the defense moved in limine to prevent the State from eliciting testimony that the defendant was arrested in an area known for drug sales and usage because it was unduly prejudicial.  The trial court denied the motion because it is mentioned in the complaint that this was the reason why law enforcement was there.  In its opening statement, the prosecution told the jury that the defendant was arrested in a high crime area.  The defense objected and moved for a mistrial.  Officer Hodgson testified, over defense objection, that he patrols drug areas and high crime areas. Over another defense objection, the officer testified that on February 1, 2006 he was on patrol in a high crime area.  Officer Hodgson testified that Defendant’s actions were not usual behavior for a law abiding individual and that the circumstances warranted a reasonable concern for the safety of persons or property in the area yet again as a high crime area.  In closing argument the State referred to the area as a “high crime area”.  The jury returned a verdict of guilty.  

The Defense Argument

The Defendant argues that he was prejudiced because the State was allowed to repeatedly make an impermissible point.  That is, the State made reference in their opening statement, their case in chief and their closing argument to the fact that the Defendant was arrested in a “high crime area”.  The defense cites five cases as authority for its argument that a prosecutor’s characterization of the area where a suspect was arrested as a “high crime area” is improper because that detail is irrelevant to the issue of guilt and because it can be unduly prejudicial because it tends to establish bad character. [1]  Four of the cases cited by Defendant involved charges of possession or sale of contraband drugs.  The remaining case involved a charge of burglary of a conveyance.  None of the cases cited by the defense involved a prosecution for loitering or prowling.

The difficulty with the defense argument is that a prosecution for loitering or prowling is different.  In loitering or prowling cases the location where the alleged offense occurred and the totality of the circumstances are relevant to the issue of guilt. 

A loitering and prowling conviction under section 856.021 requires proof that the defendant was loitering or prowling in a place, at a time, or in a manner unusual for a law abiding individual under circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity.

 

State v. Lookretis, 657 So2d 1237 (Fla. 2nd DCA 1995); See also K.R.R. v. State, 629 So.2d 1068 (Fla. 2nd  DCA 1994).  Reported cases involving prosecutions for loitering or prowling frequently mention the fact that the crime occurred in a “high crime area”. [2]

The State’s Response

            The State agrees with the defense argument that the trial court in the present case abused its discretion in allowing the State to refer to the area in which the Defendant was arrested as a “high crime area”.  However the State argues that the error was harmless. 

            The problem with the State’s response is that it fails to address the issue that the location of an alleged offense is relevant to the issue of guilt in a prosecution for loitering or prowling.  The standard jury instruction for loitering or prowling, instruction 29.7 provides:         

            To prove the crime of Loitering or Prowling, the State must prove the following two elements:

 

            1. [Defendant] loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals.

 

            2. Such loitering and prowling was under circumstances that warranted justifiable and reasonable alarm or immediate concern for safety of persons or property in the vicinity.

 

The place where the alleged loitering and prowling was committed is not only relevant; it is one of the central facts that must be proven to establish guilt, if it is to be established.

Analysis and Conclusion

As a general matter, whether identifying a location as a “high crime area” is unduly prejudicial must be evaluated on a case-by-case basis. Gillion v. State, 573 So2d 810 (Fla. 1991); Sheffield v. State, 869 So.2d 748 (Fla. 4th DCA 2004).  The question in the present case is, how many times at trial, if at all, can the location of the alleged loitering or prowling, be characterized as a “high crime area”?  Stated differently, to what extent can the proscription cited by the defense, against the mention of “high crime area” be applied to prosecutions for loitering or prowling?  The research available to this court reveals no Florida case authority that directly addresses the issue. 

An examination of the issue presented in this appeal must begin with the understanding that the place where the alleged loitering and prowling was committed is relevant.  Evidence describing that location is evidence which tends to prove or disprove a material fact.  However even though such evidence is relevant, it may still be inadmissible if its probative value is substantially outweighed by danger of unfair prejudice.  Therefore the trial court is responsible to conduct an analysis pursuant to § 90.403, Fla. Stat. (2006).   

            A trial court has broad discretion not only in determining the relevance of evidence, but also in determining whether its probative value outweighs any prejudicial effect, thereby rendering such evidence admissible; such a determination will not be disturbed on appeal absent an abuse of discretion. Robertson v. State, 780 So.2d 106 (Fla. 3rd DCA 2001).  A trial court's ruling on issue of whether probative value of evidence is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury or needless presentation of cumulative evidence is subject to abuse of discretion standard of review. Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997). 

            On appeal from a ruling including or excluding evidence on the ground that its probative value did or did not outweigh the danger of unfair prejudice, the sole issue is whether the District Court abused its discretion. In reviewing a decision concerning the probative value and prejudicial attributes of particular evidence the appellate court does not reweigh the value of the material against the potential harm to the defendant, but looks at the evidence in the light most favorable to its proponent, thus maximizing its probative value and minimizing its prejudicial effect.

 

            An appellate court normally defers to the trial court’s judgment, unless the trial court has clearly abused its broad discretion, as, for example, by admitting evidence which is so prejudicial as to outweigh its probative value.

 

29 Am. Jur. 2d Evidence § 329 (2007). 

            In the present case the testimony that the area where the alleged loitering or prowling occurred was a “high crime area” was relevant to prove a material fact; that is that Defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals.  After review of the proceedings in the trial court, this court concludes that the decision of the trial court to allow that testimony and subsequent mention of that testimony in final argument was not an abuse of discretion. The conviction and sentence of the Defendant should be affirmed.

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

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of October, 2007.

_____________________________

Linda R. Allan                                                          Circuit Court Judge

 

 

 

                                                            _____________________________

R. Timothy Peters

Circuit Court Judge

           

                                                           

 

                                                            ____________________________

                                                                        John A. Schaefer

                                                                        Circuit Court Judge

 

 

           

cc:        Honorable John Carassas        

            Ryan Thomas Truskoski, Esquire

            Justin S. Peterson, Esquire

 

 

                                                                                                                                                                                   



[1] Johnson v. State, 670 So2d 1121 (Fla. 5th DCA 1996); Sherrod v. State, 582 So2d 814 (Fla. 4th DCA 1991); Dorsey v. State, 639 So2d 158 (Fla. 1st DCA 1994); Wheeler v. State, 690 So2d 1369 (Fla. 4th DCA 1997); Latimore v. State, 819 So2d 956 (Fla. 4th DCA 2002).

[2] Lookretis at 1238; C.H.S. v. State, 795 So2d 1087 (Fla. 2nd DCA 2001); Mitchell v. State, 955 So2d 640 (Fla. 4th DCA 2007); G.G. v. State, 903 So2d 1031 (4th DCA 2005).