Boatwright v. State, 82-2033

• Decision Date: 18 July 1984
• Docket Number: No. 82-2033,82-2033
• Citation: 452 So.2d 666
• Parties: Wilbur BOATWRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 666

452 So.2d 666

Wilbur BOATWRIGHT, Appellant, v. STATE of Florida, Appellee.

No. 82-2033.

District Court of Appeal of Florida,

Fourth District.

July 18, 1984.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.

HURLEY, Judge.

Defendant appeals his convictions for grand theft and aggravated assault for which he received two concurrent seven and one-half year sentences. We affirm in part and reverse in part.

During closing argument, the prosecutor stated:

[L]adies and gentlemen of the jury, as difficult as it is, I'm asking you to stand up now, I'm asking you to do something about crime, I'm asking you to do something about [this] type of conduct, I'm asking you to send a message to folks that we're not going to put up with this.

Defense counsel voiced an objection which the trial court overruled. Thereupon, the prosecutor repeated his theme, "I'm asking you to do your job today, here in this courtroom and send these folks a message we're not gonna put up with this kind of stuff." During the rebuttal phase of final argument, the prosecutor again stated, "This is our country, this is our nation, it's time to send 'em--send criminals a message we're not gonna tolerate it any more ...." Defense counsel renewed his objection and, this time, moved for a mistrial. The trial court denied the motion, stating in the presence of the jury, "[I]n my opinion the argument is not an improper argument."

We respectfully disagree with the able trial judge. The "send 'em a message" argument may have some cachet in the political arena, but it is grossly improper in a court of law. Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982), petition for rev. denied, 430 So.2d 452 (Fla.1983); Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973). See generally United States v. Modica, 663 F.2d 1173 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). It diverts the jury's attention from the task at hand and worse, prompts the jury to consider matters extraneous to the evidence. This type of argument is calculated to inflame the passions or prejudices of the jury and, thus, is prohibited by ABA Standards for Criminal Justice, 3-5.8(c).

Under our law, the prosecutor has a duty to be fair, honorable and just. As put by Justice Sutherland, the prosecuting attorney "may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We discussed the prosecutor's role in Martin v. State, 411 So.2d 987, 990 (Fla. 4th DCA 1982), and said that it is the duty of a prosecutor to seek justice, not merely to convict. We recognize that the tensions of the adversary process and the heat of trial can test an attorney to the limit. Nonetheless, it is imperative that prosecuting attorneys be ever mindful of their awesome power and concomitant responsibility. The tactics and trial strategy of the prosecutor must reflect a scrupulous adherence to the highest standards of professional conduct.

See also Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982).

The prosecutor's argument in the case at bar constitutes a departure from acceptable practice. That it was stated three times and, on the final repetition, received the trial court's imprimatur, only underscores the egregiousness of the error. Our responsibility is to evaluate the impact of the error. The standard we must apply was articulated in State v. Murray, 443 So.2d 955 (Fla.1984). There, the court held that

prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether "the error committed was so prejudicial as to vitiate the entire trial." Cobb [v. State], 376 So.2d at 232. The appropriate test for whether the error is prejudicial is the "harmless error" rule set forth in Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), and its progeny.

Id. at 956.

Applying the harmless error rule to this case, we affirm the defendant's conviction and sentence for grand theft. The evidence of guilt is so overwhelming that we are satisfied that the error is harmless beyond a reasonable doubt. On the other hand, we are unable to make the same finding with respect to the defendant's conviction and sentence for aggravated assault. The aggravated assault allegedly took place subsequent to, and at some distance from, the grand theft. Although both crimes were properly charged in the same information, the evidence as to each is sufficiently distinct to permit separate evaluation. A review of the evidence relating to the aggravated assault simply does not allow us to say that the prosecutorial error was harmless beyond a reasonable doubt.

A second prosecutorial tactic also demands comment. During cross-examination of a key defense witness, the prosecutor skillfully established the differences between the witness's testimony and that of earlier state witnesses. Up to this point, the cross-examination was perfectly legitimate. Then, over defense objection, the prosecutor asked the witness whether each of the earlier witnesses had been lying. This effort to isolate and thereby discredit the witness is improper for a number of reasons. It is elemental in our system of jurisprudence that the jury is the sole arbiter of the credibility of witnesses. Barnes v. State, 93 So.2d 863 (Fla.1957). Thus, it is an invasion of the jury's exclusive province for one witness to offer his personal view on the credibility of a fellow witness. Bowles v. State, 381 So.2d 326 (Fla. 5th DCA 1980). Moreover, the fact that two witnesses disagree does not necessarily establish that one is lying. Lying is the making of a false statement with intent to deceive. Absent some evidence showing that the witness is privy to the thought processes of the other, the first witness is not competent to pass on the other's state of mind. Therefore, we hold that this part of the prosecutor's cross-examination was improper; the trial court erred in failing to sustain the defendant's objection.

Accordingly, the defendant's conviction and sentence for aggravated assault are reversed and the cause is remanded for new trial.

AFFIRMED IN PART, REVERSED IN PART and REMANDED for NEW TRIAL.

SMITH, CHARLES E., Associate Judge, concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge, concurring specially.

The purposes of this concurring opinion are (1) to pass along to the trial judges, prosecutors and defense counsel who practice in this district as well as The Florida Bar some suggestions which have come to mind as a result of the decision of the Supreme Court of Florida in State v. Murray, 443 So.2d 955 (Fla.1984) and (2) to express some observations as the author of Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), which was subsequently quashed in State v. Murray.

The suggestions are these:

1. Prosecutors should now, more than ever, realize that when they violate an individual's constitutional rights, they not only may be admonished by the trial court but should expect to be subject to disciplinary proceedings by The Florida Bar. I have to believe that this is a drastic change in historical direction in Florida that now imposes upon the trial judge, defense counsel and the Bar an equal responsibility. If the trial judges do nothing, then Murray will only be a rhetorical exercise at the expense of defendants' constitutional rights. I believe it was the intent of the Supreme Court that the foregoing responsibility be met because our judicial system is based upon "accountability."

2. Trial judges must shoulder the responsibility of affirmative action in dealing with misconduct by one of two methods, both of which are found in the Integration Rule of The Florida Bar 11.14, Disciplinary Proceedings in Circuit Courts, 35 F.S.A. 137-138. The trial court, or this court on review of the record, may direct the state attorney to move for disciplining the prosecutor. That procedure plainly should now make the state attorney run a very tight ship among his assistants because common sense would dictate to all of those involved in prosecution that the sword of Damocles is properly hanging right above them. The second alternative method is one authored by this writer while a member of the Board of Governors of The Florida Bar which the Board and Supreme Court adopted; namely Rule 11.14(1); which was intended to spell out for the judiciary its responsibility to call for an investigation by the Bar of the alleged misconduct without the judge becoming the actual accuser. Staff counsel of The Florida Bar would then put the disciplinary investigative procedures into motion.

State v. Murray was predicated upon United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), which had not been decided when Murray v. State was decided (which fact I shall discuss hereinafter). In Hasting, the United States Supreme Court concluded that the Court of Appeals had erred because it reversed the conviction as an expression of the reviewing court's supervisory powers without regard for the "harmless error" rule. We did the same thing in Murray v. State, which the Supreme Court of Florida correctly recognized. The difference in the federal judicial system and the system in this state with respect to the attention heretofore given prosecutorial misconduct apparently has been substantial. For example, in State v. Jones, 204 So.2d 515 (Fla.1967), a typical case perhaps, the Supreme Court of Florida reviewed the comments of this writer on closing argument in the prosecution of a murder case, found them to be...