Bocher v. Glass

• Decision Date: 28 May 2004
• Docket Number: No. 1D02-4105.,1D02-4105.
• Citation: 874 So.2d 701
• Parties: Diane Mary BOCHER and Stephanie Dawn McMurray, Appellants, v. Jeffrey Douglas GLASS and Ellen C. Glass, as co-personal representatives of the estate of Jeffrey Douglas Glass, Jr., deceased, Appellees.
• Court: Florida District Court of Appeals

874 So.2d 701

Diane Mary BOCHER and Stephanie Dawn McMurray, Appellants, v. Jeffrey Douglas GLASS and Ellen C. Glass, as co-personal representatives of the estate of Jeffrey Douglas Glass, Jr., deceased, Appellees.

No. 1D02-4105.

District Court of Appeal of Florida, First District.

May 28, 2004.

J. Stephen O'Hara, Jr., and Diane G. Cassaro, of O'Hara, Spradley & Waters, Jacksonville, for Appellants.

Fred M. Abbott and David M. Wiesenfeld of Abbott & Wiesenfeld, P.A., Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellees.

KAHN, J.

Appellants, Diane Bocher and Stephanie McMurray, appeal a $3 million jury award to appellees, Jeffrey and Ellen Glass, personal representatives of the estate of their deceased son, Jeffrey Glass, Jr. Appellants claim that the trial court erred in denying several motions for mistrial and a motion for a new trial based upon improper, and objected to, comments by the plaintiffs' attorney throughout the course of the trial below. Our review of the record shows that the plaintiffs' attorney conducted himself in a manner designed to inflame the emotions of the jury rather than prompt a "logical analysis of the evidence in light of the applicable law." See Murphy v. Int'l Robotic Systems, 766 So.2d 1010, 1028 (Fla.2000) (quoting Bertolotti v. State, 476 So.2d 130 (Fla.1985)). Although counsel's improper comments would not necessarily require reversal if considered in isolation, we find the cumulative effect of the comments sufficient to have deprived appellants of a fair trial. See Muhammad v. Toys "R" Us, Inc., 668 So.2d 254, 259 (Fla. 1st DCA 1996) (holding that the "collective import of counsel's personal injections, and irrelevant and inflammatory remarks, was so extensive as to have prejudicially pervaded the entire trial"); see also F.J.W. Enterprises, Inc. v. Johnson, 746 So.2d 1145, 1147 (Fla. 5th DCA 1999); Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158 (Fla. 5th DCA 1994). Accordingly, we reverse and remand for a new trial. We find no reversible error in appellant's other point on appeal concerning admissibility of certain evidence proffered by the defense at trial.

This case arose out of a motor vehicle accident involving Jeffrey Glass, Jr. and Stephanie McMurray. Nineteen-year old Jeffrey died when his motorcycle crashed into the truck driven by Ms. McMurray. The issues for the jury's consideration should have been limited to the respective degrees of negligence of Jeffrey and Ms. McMurray and the extent of damages to be awarded to Jeffrey's parents and his estate. Plaintiffs' trial counsel, Mr. Abbott, however, injected a continuous stream of personal commentary from voir dire through to closing arguments rather than focusing on the discrete issues and the evidence.

During voir dire, plaintiffs' counsel made comments that could have only been designed to ingratiate himself to the potential jurors and focus their attention on irrelevant matters. See Kelley v. Mutnich, 481 So.2d 999, 1000 (Fla. 4th DCA 1986) ("[A]ttempts to curry favor with members of the jury are unprofessional and should be met by rebuke."). Plaintiffs' counsel identified himself as having a child apparently near the age of the decedent. The appellants unsuccessfully objected and moved for a mistrial. Counsel then segued to a series of comments implying that appellants would unfairly ask the jury to second guess the decedent's actions while, at the same time, telling the jury that he knew all about "armchair" quarterbacks because he used to be a professional football player. After the trial court sustained an objection to counsel's statement of personal belief regarding the unfairness of armchair quarterbacking, counsel went on to tell the jury that, "I'm pretty much a straight ahead guy." Once again, the trial court sustained appellants' objections. Counsel moved on to a series of questions relating to the jurors' views on owning a confederate flag. He told the venire that the decedent had owned one but was not a racist and that he had black friends and white friends. Upon objection, the trial court instructed plaintiffs' counsel to stop testifying. Cf. Rockman v. Barnes, 672 So.2d 890, 891 (Fla. 1st DCA 1996) ("We definitely do not condone the injection of the personal opinion of plaintiff's counsel into argument before the jury."). Finally, counsel told the jury, "I want to go back into the Florida Times Union. About every thirty days they publish an article in Section B in the editorial section that has to do with frivolous lawsuits." Appellants objected and moved for a mistrial on the basis that plaintiffs' counsel was once again testifying to the jury. The trial court sustained the objection but denied the mistrial.

During the trial, appellants' expert witness, Michael Dobbs, volunteered that he was going to donate his fee to charity. Plaintiffs' counsel noted that this was inconsistent with what Dobbs had stated during his deposition. Dobbs stated that he had had a change of heart. Plaintiffs' counsel replied inappropriately, "I bet you did." See R. Regulating Fla. Bar 4-3.4(e) (barring a lawyer from stating a personal opinion as to the credibility of a witness). The trial court sustained appellants' objection and gave a curative instruction.

During closing argument, plaintiffs' counsel told the jury that if a "magic button" were placed in front of Mrs. Williams, a juror, and $6 million were placed in front of Mr. Brooks, another juror, the plaintiffs would walk past the money and press the button to bring their son back. Appellants' counsel objected, arguing this constituted an impermissible "golden rule" argument. See Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989) (observing that a "golden rule" argument requires the jury "to put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence"). The trial court overruled the objection.

Although we recognize that the "magic button" argument did not explicitly ask the jurors how much they would want to receive had their own child died in an accident, we find it was nonetheless improper. The only conceivable purpose behind counsel's argument was to suggest that jurors imagine themselves in the place of Jeffrey's parents. Counsel utilized jurors' actual names, and even set up the jury box as a prop for the "magic button" and the $6 million. "Golden rule" arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self interest. See Tremblay v. Santa Rosa County, 688 So.2d 985, 987 (Fla. 1st DCA 1997). The "magic button" argument had the same effect. If jurors are to remain fair decision-makers, the trial court must guard against a deliberate act of counsel that serves to put the jury center stage in the drama that should be the trial.

Plaintiffs' counsel next moved into a "value of human life" argument. See Wilbur v. Hightower, 778 So.2d 381, 383 (Fla. 4th DCA 2001) (defining a "value of human life" argument as one which asks the jury to "place a monetary value on the life of the decedent"). He began, "I want to talk a little about money in our society. Our society values paint on a canvas to the tune of $82.5 million." At that point, appellants objected and the trial court sustained the objection, warning plaintiffs' counsel to abandon the argument.

Finally, during rebuttal, plaintiffs' counsel attempted to relate a story about him and his grandfather walking in the Florida woods when he was a child. Appellants objected and the trial court sustained the objection. See Muhammad, 668 So.2d at 258 (noting that "irrelevant familial rhetoric must not be condoned"). Counsel then began telling a story about a hypothetical young boy and his grandfather walking through the woods. Appellants once again objected, and once again the trial court sustained the...