Thomas v. State, 46416

• Decision Date: 03 December 1975
• Docket Number: No. 46416,46416
• Citation: 326 So.2d 413
• Parties: Frank Douglas THOMAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 413

326 So.2d 413

Frank Douglas THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 46416.

Supreme Court of Florida.

Dec. 3, 1975.

Rehearing Denied Feb. 17, 1976.

Gerald Kogan and Stephen J. Kogan, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.

ROBERTS, Justice.

Having been transferred by the District Court of Appeal, Third District, this cause is before us on direct appeal from an order of the Circuit Court in and for Dade County upholding the constitutionality of Section 800.02, Florida Statutes, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution (1973).

Appellant was charged by indictment with the crimes of extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. The trial court denied appellant's motion to dismiss the indictment which was based on the ground that Section 800.02, Florida Statutes, is unconstitutional, thereby upholding the validity of said statute. He was found guilty of the crimes charged and was adjudicated guilty by the trial court and sentenced to a term of six months to three years in the state prison.

Appellant contends that his right to a fair and impartial trial was violated by closing remarks of the prosecuting attorney, that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite, and that the acts for which he was convicted do not constitute a violation of Section 800.02, Florida Statutes, and, therefore, the conviction should be reversed. Having carefully read and studied the record and briefs and having heard argument, we find that appellant's points on appeal are without merit.

Although appellant argues that numerous prejudicial and inflammatory remarks were made by the prosecutor in his closing argument, the defense objected to only two of these remarks. This Court stated in State v. Jones, 204 So.2d 515 (Fla.1967), relative to the necessity that there be a timely objection to the challenged remarks, as follows:

'It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middle ground which will secure to the defendant on trial the rights afforded him by law without sacrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:

"But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'

'The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.' (emphasis supplied)

Cf. Smith v. State, 243 So.2d 602 (Fla.App.1971); Hall v. State, 203 So.2d 202 (Fla.App.1967).

As to those remarks to which appellant failed to object, this Court will not consider appellant's objections. The two remarks which were objected to by defense counsel, to-wit:

'The entire department suffers from this man's actions and every other person--

'MR. GERALD KOGAN: Objection, Your Honor. That's improper argument to the jury.

'THE COURT: I'll sustain the objection. Proceed on.

'I suggest to you it's too bad there's not a crime in the book called inhumanity to fellow human beings--

'MR. GERALD KOGAN: Objection, Your Honor, it is improper argument again.

'THE COURT: Proceed on, again.

'MR. GERALD KOGAN: We also move for a mistrial based on the comments by Mr. Carhart.

'THE COURT: I'll deny the motion for Mistrial.

'Proceed on.

'Ask the jury to disregard that.'

Were not so harmful or fundamentally tainted so as to require a new trial. Wide latitude in the argument to a jury is permitted. This Court in Spencer v. State, 133 So.2d 729, at 731 (Fla.1961), explained:

'The only other point urged for reversal is the contention that the remarks of the Assistant State Attorneys during the closing arguments were of such an inflammatory nature as to influence the jury unduly to the prejudice of the appellant. We think no useful purpose would be served by analyzing in detail the comments of the prosecuting officers. The rule is that considerable latitude is allowed in arguments on the merits of the case. Logical inferences from the evidence are permissible. Public prosecutors are allowed to advance to the jury all legitimate arguments within the limits of their forensic talents in order to effectuate their enforcement of the criminal laws. Their discussion of the evidence, so long as they remain within the limits of the record, is not to be condemned merely because they appeal to the jury to 'perform their public duty' by bringing in a verdict of guilty. The prosecutors in the instant case remained within the bounds of the evidence. Washington v. State, 86 Fla. 533, 98 So. 605. In actuality, there is probably very little that the prosecutors themselves could have advanced which would have been any more damning of the conduct of this appellant than the gruesome evidence which was presented from the witness stand.' (emphasis supplied)

Further, we announced in Paramore v. State, 229 So.2d 855 (Fla.1969), that it will not be presumed that jurors are led astray to wrongful verdicts by impassioned eloquence and that, 'It is well settled that the comments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion unless a clear abuse thereof has been made to appear. See 6 F.L.P., Criminal Law, § 538. When an improper statement is made by counsel before it is practicable for the Court to prevent its utterance, the Court should visit upon such counsel prompt and fitting rebuke so as to impress on the jury the gross impropriety of being influenced thereby.' The prosecutional remarks made sub judice, to which the defense objected, do not warrant reversal of appellant's conviction. Cf. Falcon v. State, 226 So.2d 399 (Fla.1969), Sherman v. State, 255 So.2d 263 (Fla.1971); Grant v. State, 194 So.2d 612 (Fla.1967). The comments made sub judice were not so prejudicial so that no cautionary instruction or retraction could destroy their harmful effect. The trial judge sustained the objections to both comments and specifically asked the jury to disregard the second comment. He acted properly within his discretion in not declaring a mistrial.

Appellant next argues that the trial court erred in denying his motion to dismiss the indictment on the ground that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite because the language unnatural and lascivious is not sufficiently explicit as to define what conduct is prohibited. We adhere to recent decisions of this Court holding that the words 'unnatural and lascivious' as used in Section 800.02, Florida Statutes, are not void for vagueness and that these words are of such a character that an ordinary citizen can easily determine what character or act is intended; and we are by no means persuaded that the position taken in these cases and the reasoning upon which it was based are no longer valid. Witherspoon v. State, 278 So.2d 611 (Fla.1973); State v. Fasano, 284 So.2d 683 (Fla.1973). Cf. Chesebrough v. State, 255 So.2d 675 (Fla.1971). See also: Murray v. State, 384 F.Supp. 574 (S.D.Fla.1974).

Further, we find that the act of forced oral copulation, sub judice constitutes an unnatural and lascivious act within the meaning of Section 800.02, Florida Statutes. We note that in Washington v. State, 302 So.2d 401 (Fla.1974), this Court cited with approval the following excerpt from the decision of the District Court of Appeal, First District, in Brinson v. State, 278 So.2d 317 (Fla.App.1973):

"In our view, the body and mind of a victim of a forcible sexual assault is no less outraged because the penetration by the assailant occurred in the anal orifice--as in the instant case--or in the oral orifice--as in the Parisi case (265 So.2d 699 (Fla.1972))--rather than in the vaginal orifice. In either case, it is a gross invasion of the privacy of one's body which cannot be tolerated by a civilized society.

". . . Accordingly, we hold that any forcible penetration by a man's sexual organ into any bodily orifice of another against the latter's will constitutes forcible carnal knowledge of the victim and upon conviction thereof is punishable under Section 794.01, Florida Statutes. F.S.A."

Relying on this Court's decision in Franklin v. State, 257 So.2d 21 (Fla.1971), the District Court of Appeal, Second District, in Morris v. State, 261 So.2d 563 (Fla.App.1972), opined:

'At this point, however, we interpose that the supreme court in Franklin and Joyce, supra, considered that F.S. § 800.02, F.S.A., which condemns as a misdemeanor any 'unnatural and lascivious act with another person,' Is constitutional. It follows that that court must deem this statute, unlike § 800.01, Supra, to be quite clear and certain, and it must further follow that it thinks it to be set forth in language which Is relevant to today's society.

'Furthermore, the court there held that an 'unnatural and lascivious act with another person' was, under the evidence in those cases, a lesser included offense within the 'abominable and detestable crime against nature' offense charged. Whereupon, the court reversed the judgments of guilty of the higher offenses and remanded the causes with instructions to enter judgments of guilty of the lesser offense and to impose sentence accordingly.

'We pursue the same course. A careful reading of the record discloses that not only did the evidence support a finding of...