EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 10, 2021

Supreme Court of Florida Finds Break During Medical Examiner's Testimony Not Grounds for Mistrial in Murder Trial

An emotional outburst by a witness can be grounds for a judge granting a mistrial. So, where there such grounds in Smith v. State, 2021 WL 1572359 (Fla. 2021)?

In Smith
On June 21, 2013, [Donald James] Smith met eight-year-old Cherish Perrywinkle, her sisters, and her mother, Rayne, at a Dollar General store in Jacksonville. Smith overheard Rayne explain to an employee that she could not afford to purchase a dress for Cherish, and offered to drive the Perrywinkles to Walmart and buy clothes for the family. Smith explained to Rayne that his wife had a gift card and would meet the group there. At Walmart, they shopped together for hours. It got late and the Perrywinkles had not eaten, so Smith said he would buy them all cheeseburgers at a McDonalds inside the store. Instead, at 10:44 p.m., he vanished with Cherish. Surveillance cameras caught Smith leading her to his van, as well as the two of them driving away.
Cherish was not seen alive again. The next morning, with the help of witnesses reporting the location of Smith's van, police located Cherish's body in a creek behind a church, under a pile of debris. Cherish had been brutally raped, then strangled to death. An officer identified Smith, who was soaking wet, behind the wheel of the same van that had left Walmart. It contained the things Rayne had bought at Dollar General. Smith was arrested and charged with kidnapping, sexual battery of a person under twelve, and first-degree murder.

At trial, the following occurred during the questioning of chief medical examiner Dr. Valerie Rao

Prosecutor: I'm going to show you two more photographs of the dissection taken of Cherish Perrywinkle's throat. Will you first tell the jury what you saw when you dissected her throat?
Dr. Rao: Yes. So what we do is – I'm sorry. I just need a break. Have [sic] about five minutes.
Court: You want a five-minute break? I think we'll all take a break for ten minutes. Thank you.
The judge dismissed the jury and defense counsel moved for a mistrial, arguing that Dr. Rao's response was so prejudicial that it could not be cured by any jury instruction. The court denied the motion. After the ten-minute recess, Dr. Rao resumed her testimony without further interruption.

After he was convicted, Smith appealed, claiming that his case was similar to cases with emotional outbursts by witnesses that required mistrials. The Supreme Court of Florida disagreed, concluding that 

The fact that Dr. Rao took a break during her testimony did not affect the fairness of Smith's trial. The jury saw no outburst of emotion. From its vantage point, which was closer to Dr. Rao's reaction than ours, the trial court determined that a recess was appropriate, and a mistrial was not....We cannot say this was an abuse of discretion.
This case is not like the one cited by Smith, where a witness's outburst injected into the proceedings a concern for the emotional distress of another sufficient to distract the jury from its work as finders of fact. See Colon v. State, 191 So. 3d 985, 986 (Fla. 2d DCA 2016) (reversing a trial court's denial of motion for mistrial after a witness-mother cried and threw up when photographs of her dead child's genitals were introduced through her testimony). Here, Dr. Rao paused, caught her breath, and asked for a break. She did not state why she was requesting a break, and when testimony resumed, Dr. Rao spoke clearly and did not appear to the jury to be in any emotional distress.



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My first impression was the grounds were quite flimsy. But then I noticed it was a DP appeal, so you can’t really fault counsel for giving it a shot.

Posted by: hardreaders | May 11, 2021 5:49:53 AM

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