MacIas v. State ( 1984 )

447 So. 2d 1020 (1984)

Lazaro MACIAS, Appellant,
v.
The STATE of Florida, Appellee.

No. 83-447.

District Court of Appeal of Florida, Third District.

April 3, 1984.

Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.

PER CURIAM.

The action of the prosecutor in questioning whether the murder victim had ever seen his posthumously born child was an extremely improper appeal to the sympathy of the jury. Edwards v. State, 428 So. 2d 357 (Fla. 3d DCA 1983); Gomez v. State, 415 So. 2d 822 (Fla. 3d DCA 1982); Harper v. State, 411 So. 2d 235 (Fla. 3d DCA 1982). In contrast to Edwards, Gomez and Harper, however, the trial court here sustained an objection to the question and instructed the jury to disregard it. See Tacoronte v. State, 419 So. 2d 789 (Fla. 3d DCA 1982). More important, considering the overwhelming evidence against the defendant, we must conclude that any error was harmless. State v. Murray, 443 So. 2d 955 (Fla. 1984); Hall v. State, 444 So. 2d 1019 (Fla. 3d DCA 1984).

We find no merit in the other points presented. Rodriguez v. State, 413 So. 2d 1303 (Fla. 3d DCA 1982); Costales v. State, 438 So. 2d 981 (Fla. 3d DCA 1983); Cundiff v. United States, 501 F.2d 188 (8th Cir.1974).

Affirmed.