The Test In Determining Whether Trial Error In a Criminal Case Is Harmful

In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Court held that an erroneous comment on a defendant's constitutional right to remain silent requires reversal and remand for a new trial unless the appellate court can conclude beyond a reasonable doubt that the error did not affect the verdict. Id. at 1135, 1139. The Court set out the test to be applied in determining whether trial error in a criminal case is harmful: The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. Id. at 1139. Two years later, this Court reaffirmed the vitality of this test, holding that "reversal is mandated under . . . DiGuilio . . . when the state fails to demonstrate beyond a reasonable doubt that there is no reasonable possibility that the erroneous admission of collateral crime evidence affected the jury verdict." State v. Lee, 531 So. 2d 133, 134 (Fla. 1988). The court "declined to modify the DiGuilio test to require only a showing that the permissible evidence would support the conviction in order to find the erroneous admission of improper collateral crime evidence harmless." Id. at 136. In Goodwin v. State, 751 So. 2d 537 (Fla. 1999), the Court was called upon to determine whether section 924.051(7), Florida Statutes (Supp. 1996), abrogated the DiGuilio harmless error test in cases involving nonconstitutional error. In answering a certified question, this Court held that the provision did not alter the obligation of the appellate courts to independently review both constitutional and nonconstitutional errors for harmlessness under the DiGuilio standard. See Goodwin, 751 So. 2d at 537. The Court specifically stated that it had determined in Lee that "this Court retains the authority to determine the analysis to be applied in deciding whether an error requires reversal." Id. at 542 (citing Lee, 531 So. 2d at 136 n.1).