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Cartwright v. State11/3/2004
Joseph Cartwright appeals his conviction for burglary of a dwelling. He contends that the trial court erred in denying his motions for mistrial made after the court allowed: (1) the victim's testimony about a prior burglary at his home; (2) testimony concerning the defendant's possession of marijuana while in the victim's home; and (3) improper closing argument by the state.
When Sean Brammer, a Florida state trooper, pulled into the parking lot of his Lauderhill condominium around 8:00 p.m. on June 4, 2002, he noticed that a bedroom light was on. As he entered the front porch door, he saw the living room light go out. Moments later, he saw the defendant open the kitchen door and stick his head out. Brammer had never seen the defendant before. He drew his firearm, identified himself as a law enforcement officer, and asked the defendant what he was doing there. The defendant replied that he was there visiting his "sister." He was barefoot and wearing only a tank top and shorts. The house had not been ransacked. Brammer held the defendant at gunpoint until the police arrived.
Brammer testified that he changed the locks to his condominium when he moved there in November 2001. He testified, over defense objection, that he changed the locks a second time when his condominium was broken into two weeks before this incident. On that occasion, entry was gained through a window, and a TV/VCR and CD player were stolen. This time, it appeared that entry was again made through a window after removal of a screen and jalousie window pane.
The defendant testified at trial. He said that the previous resident of the condominium, Alisha Milligan, had given him a key to the condominium. She was a friend of his, whom he called his "sister" in the Rastafarian tradition. Because he had not seen her in a while, he decided to stop by. When he found that the front door was latched, he used the key to let himself in through the kitchen door. He noticed that the condominium was empty but decided to stay there and eat his food. Since the weather was hot, he removed his clothes. He remained in the condominium for about thirty to forty-five minutes until Sean Brammer arrived and confronted him.
Before trial, defense counsel obtained an order in limine precluding the state from eliciting testimony from the victim about the prior burglary at his home. The trial court determined that the prejudicial effect of such testimony would outweigh its probative value. However, the court ruled that it would allow the victim to testify that he had changed the locks to his condo two weeks before the charged burglary. The court found this testimony relevant to refute the defendant's statement that he entered the apartment using a key given to him by the prior tenant.
At trial, the victim testified on direct examination that he changed the locks to his condominium two weeks before the encounter with the defendant. On cross-examination, defense counsel asked:
*2 Q. Isn't it true that you told me you changed the locks when you moved in back in November?
A. That's correct.
Q. Okay.
A. I changed the locks when I first bought the condo.
Whereupon, the state asserted at sidebar that this questioning opened the door to allow him to question the victim about the previous burglary as the reason for the second changing of the locks. The trial court agreed and, over defense objection, permitted the state to elicit testimony about the first burglary, the items that were stolen, and the mode of entry through the jalousie window. The defense moved for a mistrial. The motion was denied.
During closing argument, the state highlighted this testimony about the prior burglary and asked the jury to draw a connection, stating:
Lo and behold why were the locks changed again? Because
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