Briggs v. State, AU-125

• Decision Date: 17 August 1984
• Docket Number: No. AU-125,AU-125
• Citation: 455 So.2d 519
• Parties: Freddie BRIGGS, a/k/a Billy Bones, a/k/a Billy Dee, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 519

455 So.2d 519

Freddie BRIGGS, a/k/a Billy Bones, a/k/a Billy Dee, Appellant, v. STATE of Florida, Appellee.

No. AU-125.

District Court of Appeal of Florida,

First District.

Aug. 17, 1984.

Rehearing Denied Sept. 28, 1984.

Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Briggs was convicted in a jury trial of murder in the second degree with the use of a firearm in violation of section 782.04(2), Florida Statutes. On appeal, he urges that the trial court erred in failing to grant him a new trial because various acts of prosecutorial misconduct during trial were so frequent and so pervasive that he was deprived of his right to a fair trial in violation of the Fourteenth Amendment and of article I, section 9, of the Florida Constitution.

For purposes of this opinion, it is not necessary to recite the details of the alleged misconduct. It is sufficient to state that appellant's main complaint centers around the prosecutor's attempts, in the presence of the jury, to comment on and bring into question the personal integrity of defense counsel by suggesting that counsel was not being truthful and was deliberately misleading the jury. The trial court sustained several objections by defense counsel to the prosecuting attorney's conduct on this and other grounds, and directed the prosecuting attorney not to persist in such tactics. ¹ If the evidence of guilt in this case had been close and the trial court not granted a mistrial, we would have been compelled to do so. The evidence of defendant's guilt, however, was overwhelming. Appellant shot the victim twice in a public place in the presence of many witnesses while the victim was hiding under a pool table. Once again, therefore, we affirm the defendant's conviction under the harmless error rule.

Ordinarily we would have affirmed this case without opinion. We feel compelled, however, to note that many criminal appeals have been filed legitimately complaining of misconduct by the prosecuting attorney during trial. The conduct complained of in this case, as is true in most of the cases appealed on similar grounds, evidences an excessive preoccupation with obtaining a conviction at any cost. Such preoccupation disregards the prosecutor's duty in representing the people of the state of Florida to see that justice is done because obtaining a conviction at the expense of a fair trial is not justice. Such preoccupation usually leads to personal involvement by counsel to such an extent that he or she often becomes unable to try the case with the degree of objectivity and personal detachment required of counsel in the adversarial environment. Verbal attacks on the personal integrity of opposing counsel, rather than appropriate comments on the credibility of witnesses and inferences to be drawn from the evidence before the jury, are wholly inconsistent with the prosecutor's role.

It is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. His duty is not to obtain convictions but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client. In violating this duty, the prosecuting attorney jeopardizes all the effort and work expended by those above mentioned. (Footnote omitted.)

Cochran v. State, 280 So.2d 42, 43 (Fla. 1st DCA 1973).

Appellant's brief questions whether any appropriate remedy exists to prevent these occurrences. Appellant's counsel argues rather persuasively:

Over 30 years ago, in Irvin v. State, 66 So.2d 288 (Fla.1953) the prosecutor, in closing argument, commented that defense counsel had prevented the state from demonstrating that the accused had a grudge against law enforcement. The defendant's motion for a mistrial and request for a curative instruction was denied. On appeal, while recognizing that the argument was indeed improper and the court should have given a cautionary instruction, the appellate court held the error harmless.

Thus, at least since 1953, prosecutors have been placed on notice that arguments directed to the role of defense attorneys are not proper.

Undeterred by Irvin, the prosecutor in Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), commented as to the techniques of defense attorneys and how defense lawyers operate. On appeal, in very strong language, this court branded such comments as both highly improper and unethical. Yet, invoking the harmless error doctrine, this Court affirmed.

Undeterred by both Irvin and Cochran, the prosecutor in Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977) referred to 'one of the favorite tricks of a defense lawyer.' This Court admonished the prosecutor for making the comment, labelling it a gratuitous insult to the adversary system of justice. Yet, again, apparently on the basis of the harmless error doctrine, Simpson's conviction was affirmed.

Undeterred by Irvin, Cochran, and Simpson, supra, the prosecutor in Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981) made comments which the appellate court analogized to those made in Cochran. Again, the conviction appealed was affirmed.

Undeterred by Irvin, Cochran, Simpson, and Hufham, supra, the prosecutor in Melton v. State, 402 So.2d 30 (Fla. 1st DCA 1981) argued that it is amusing how defense attorneys come up with arguments to thwart the common sense of the jurors. Again, this Court determined that such remarks constitute a gratuitous insult to the adversary system of justice, and were both improper and unethical. But again, this Court affirmed.

Undeterred by Irvin, Cochran, Simpson, Hufham, and Melton, supra, the prosecutor in Westley v. State, 416 So.2d...