Barnes v. State, 98-0299.

• Citation: 743 So.2d 1105
• Decision Date: 17 February 1999
• Docket Number: No. 98-0299.,98-0299.
• Parties: Johnny C. BARNES, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

743 So.2d 1105

Johnny C. BARNES, Appellant, v. STATE of Florida, Appellee.

No. 98-0299.

District Court of Appeal of Florida, Fourth District.

February 17, 1999.

Opinion Denying Rehearing May 26, 1999.

Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

Robert A. Butterworth, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for appellee. (On rehearing).

Michael J. Satz, State Attorney for the Seventeenth Judicial Circuit, and J. Scott Raft, Assistant State Attorney, Fort Lauderdale. (On rehearing).

FARMER, J.

At 2:00 in the morning on his way home after working a full shift as a nurse, an eyewitness saw two men illuminated by the low level glow of a nearby streetlight running away from a burning building. He saw them for no more than 15 seconds. The witness later identified a photograph of defendant as one of the men and, still later, identified him again from a lineup. Defendant's lawyer at the lineup objected to the array of persons chosen as unreasonably suggestive because none of them had the same general features as defendant. That lawyer, who had by then withdrawn as defendant's counsel, was called at trial as a defense witness to establish that the identification was tainted. Four other defense witnesses testified in support of an alibi, while still another witness testified to a conversation with a different person who admitted setting the fire.

During closing argument defense counsel argued that there was no objective evidence linking defendant to the crime and that a verdict of guilty would have to rest on the eyewitness identification. He argued that the identification was substantially compromised by the testimony of the first defense counsel. In rebuttal the state's prosecutor, Alberto Milian, responded by characterizing this testimony as "the mercenary actions of ... a hired gun, [e.s.] hired by the—." At that point the following occurred:

"DEFENSE: Objection to that.

COURT: Sustained.

DEFENSE: Ask that it be stricken.

COURT: Ignore the last comment.

STATE: —who was hired to go over there and defend this guy."

On appeal defendant argues that his conviction must be reversed because this highly improper argument of the prosecutor affected the jury in its deliberations in spite of a sustained objection and the curative instruction. We agree and reverse for a new trial.

The impropriety of a prosecutor disparaging or denigrating the person of defense counsel is now well established. See Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984)

; Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973); Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981); Melton v. State, 402 So.2d 30 (Fla. 1st DCA 1981); Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982); McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983). This court has joined the many courts condemning the tactic. See Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998); Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993); Ryan v. State, 457 So.2d 1084, 1089 (Fla. 4th DCA 1984); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975),

cert. denied, 333 So.2d 465 (Fla.1976); see also Valdez v. State, 613 So.2d 916 (Fla. 4th DCA 1993). As we said in Ryan, "[r]esorting to personal attacks on the defense counsel is an improper trial tactic which can poison the minds of the jury." 457 So.2d at 1089(citation omitted).

The record clearly demonstrates the absence of objective evidence—e.g., fingerprints, clothing, footprints, bodily fluids, etc.—definitively tying defendant to the crime. Moreover it shows that the only other evidence incriminating defendant was circumstantial, that he was employed by a competitor of the business whose building was burnt by the arson. As we have already indicated, there was substantial evidence to create a reasonable doubt, consisting of an alibi and a hearsay admission of guilt by a third party. And if that were not enough, there were internal inconsistencies in the eyewitness's identification, primarily arising from differences between defendant's physical appearance and the details first given by the witness before any identification. It thus appears to us from a fastidious review of the record that the eyewitness identification was the heart of the state's case.

The testimony of original defense counsel therefore assumed great importance to the jury's resolution of the case. Hence, while we might have been able to conclude with some confidence in a case with substantial corroborating evidence of guilt that the error in closing argument was harmless, see e.g. Goddard v. State, 143 Fla. 28, 196 So. 596 (1940); and Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998), here we are unable to do so. The state's case is barely enough to be prima facie, and it is countered by strong defense evidence that another person might be guilty.

Two additional problems arise from the trial judge's response to defendant's motion to strike the improper argument after the objection was sustained—namely, the trial judge's statement to "[i]gnore the last comment." As a curative instruction the judge's response is quite ambiguous. What precisely is the "last comment" to which the judge referred? Was it the words immediately preceding the judge's instruction, i.e., "[a]sk that it be stricken"? When a judge grants a motion to strike in this circumstance it is important that the fact of granting the motion be made unmistakably clear to the jury. It is also very important that the precise comment to be stricken be identified in a way that will leave no room for doubt about what the jury must ignore.

Equally troublesome is the vaporous nature of the "curative" instruction. As our supreme court said in Deas v. State, 119 Fla. 839, 161 So. 729, 731 (1935):

"When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state's counsel in the prosecution of a criminal case, or where a prosecuting attorney's argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments." [emphasis supplied]

161 So. at 731; see also Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985)

("[W]e commend to trial judges the vigilant exercise of their responsibility to insure a fair trial. Where, as here, prosecutorial misconduct is properly raised on objection, the judge should sustain the objection, give any curative instruction that may be proper and admonish the prosecutor and call to his attention his professional duty and standards of behavior."). The "curative" instruction in this case hardly rises to these standards.

The seriousness of the impropriety committed by the prosecutor demanded a rebuke in the presence of the jury, coupled with a more forceful admonition that this kind of argument is highly improper and should not be considered in any way by the jury. Instead the court diluted its "cure" to the weakest possible, thereby implying that the violation was insubstantial and tenuous and the objection merely ritualistic. For a curative instruction conceivably to erase the palpable prejudice to the defendant in this situation, the court should have condemned the comment in the clearest and most unmistakable terms. In these circumstances it might even have been proper for the court to question the jurors to determine whether the effects of such improper closing argument could be set aside. The curative instruction in this case being so inadequate to its purpose, we are therefore unable to indulge the assumption that it had much effect.

Although defendant did not specifically move for a mistrial after the objection was sustained, he argues on appeal that the argument fundamentally affected the outcome of the trial. As the supreme court has stated: "for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process." State v. Johnson, 616 So.2d 1, 3 (Fla.1993) (citations omitted). When the error concerns closing argument in a criminal case, to be fundamental it must be "such as utterly to destroy the defendant's most important right under our system, the right to the `essential fairness of [his] criminal trial.'" Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998) (citations omitted); see also Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989),

cert. denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d 547 (1994); Knight v. State, 672 So.2d 590, 591 (Fla. 4th DCA 1996); Tuff v. State, 509 So.2d 953, 955-56 (Fla. 4th DCA 1987); Peterson v. State, 376 So.2d 1230, 1234 (Fla. 4th DCA 1979),

cert. denied, 386 So.2d 642 (Fla.1980); and Thompson v. State, 318 So.2d 549, 551 (Fla. 4th DCA 1975). Fundamental error in a criminal case is error that "reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting from State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991),

cert. denied, 522 U.S. 832, 118 S.Ct. 103, 139 L.Ed.2d 58 (1997)).

It is true that this prosecutorial excess is but a single comment, and that we are implicitly rejecting defendant's argument that other comments of this prosecutor are...