Brinson v. State

• Decision Date: 02 January 2015
• Docket Number: No. 5D14–653.,5D14–653.
• Citation: 153 So.3d 972
• Parties: Andre Pierre BRINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

153 So.3d 972

Andre Pierre BRINSON, Appellant

v.STATE of Florida, Appellee.

No. 5D14–653.

District Court of Appeal of Florida, Fifth District.

Jan. 2, 2015.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion

LAMBERT, J.

Andre P. Brinson appeals the judgment and sentence adjudicating him guilty of felony battery after a jury trial. Because we find that the cumulative effect of the State's improper comments in both its opening statement and closing argument deprived Brinson of a fair trial, we reverse and remand for a new trial.

At the time of the incident, Brinson and the alleged victim, Shelby Graham, were living in the same apartment and were romantically involved. Graham was the State's key witness at trial. There, she testified that Brinson “came in behind me and grabbed me by my hair and drug me through the living room and threw me down on my bed and then I fell onto the floor.” As a result, Graham suffered a fracture to her left arm that required surgery using six pins to correct. According to Graham, Brinson threw her down because he thought she had sex with another man who had previously visited their apartment to use Graham's crack pipe.

Graham's credibility was a critical issue at trial. She testified that she did not report the incident until several days later and that, in the meantime, she told her mom and Brinson's aunt, Sheila Debose, that she sustained her injury by falling. Debose testified that when she picked Graham and Brinson up the day after the incident, Graham told her that she had been in a fight with her female roommate and that she was laughing and talking with Brinson in the car. Officer Michael Mathyas, a defense witness who visited Graham at her apartment a day or two after the incident, testified that Graham was hesitant to talk about the altercation in any detail and was primarily concerned with having Brinson evicted from her apartment because he was allegedly stealing money from Graham to buy drugs. In light of this evidence, Brinson's primary defense at trial was that Graham fabricated her story in order to have Brinson removed from her apartment.

Approximately four days after the incident, Graham went to the police station to obtain an injunction against Brinson. At that time, according to Officer Robert Claudio, Graham was “hesitant” to give information about the incident or to cooperate. Nevertheless, after speaking with Brinson, Officer Claudio felt he had sufficient probable cause to file a complaint affidavit. The State subsequently charged Brinson by information with felony battery for allegedly striking Graham against her will, causing great bodily harm.

At the conclusion of the jury trial, Brinson was adjudicated guilty and sentenced to five years in the Department of Corrections. He now argues that the prosecutor's opening and closing remarks deprived him of a fair trial.

There are two standards of review applicable in this case. Where Brinson objected to the allegedly improper comments, and his objection was overruled, the standard of review is abuse of discretion. McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001) (citing Moore v. State, 701 So.2d 545 (Fla.1997) ). The standard of review is also abuse of discretion where Brinson moved for a mistrial and his motion was denied. Salazar v. State, 991 So.2d 364, 371–72 (Fla.2008). In contrast, where Brinson did not object to or move for a mistrial based on the allegedly improper comments, the standard of review is fundamental error. Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999). “In order for an error to be fundamental and justify reversal in the absence of a timely objection, ‘the error must reach 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.’ ” Randolph v. State, 853 So.2d 1051, 1068 (Fla.2003) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960) ).

The prosecutor made the following remarks during opening statements:

[Graham] tells Officer Claudio what happened and he files a complaint affidavit, arrest report.

He doesn't actually arrest the defendant because of the time—the time delay. The way they do it, the procedure, they file a complaint affidavit. My office reviews these complaint affidavits and whether they should file charges or not. And our office did decide to file charges. That's why we're here today.

As I said before, [Graham] is a victim in the truest sense. It's common with domestic violence victims that they don't report immediately—

Brinson immediately objected to these remarks and his objection was properly sustained. It was improper for the prosecutor to reference the State's charging decision during opening statements because it implied “that the prosecution would not have been commenced, and that [the prosecutor] personally would not have participated unless it had already been determined that [the] defendant was guilty.” United States v. Garza, 608 F.2d 659, 664–66 (5th Cir.1979). However, because Brinson made no request for further action from the court after his objection was sustained, these remarks alone do not warrant a new trial. See Clark v. State, 363 So.2d 331, 335 (Fla.1978), abrogated on other grounds by State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (“When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection.”).

Next, during the prosecutor's initial closing argument, the prosecutor remarked that Graham had never been convicted of a felony. Brinson's objection to this statement was properly sustained because there were no facts in evidence suggesting that Graham had never been convicted of a felony. See Charriez v. State, 96 So.3d 1127, 1128 (Fla. 5th DCA 2012) (stating that it is improper for a prosecutor to refer to facts not in evidence). The prosecutor's statements also constituted improper bolstering. See Hutchinson v. State, 882 So.2d 943, 953 (Fla.2004) (“Improper bolstering occurs when the State ... indicates that information not presented to the jury supports the witness's testimony.”), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla.2008) (“Improper bolstering occurs when the State ... indicates that information not presented to the jury supports the witness's testimony.”); cf. Welch v. State, 940 So.2d 1244, 1246 (Fla. 2d DCA 2006) (holding that “it was error for the trial court to allow the State to question the confidential informant on direct examination about her lack of felony charges” when there was no prior attack of the witness's credibility). At that time, Brinson moved for a mistrial. However, the trial court deferred argument on the motion and directed Brinson to give argument at the end of all closing arguments.

The prosecutor's most egregious remarks occurred during his rebuttal closing argument, which began as follows:

MR. SMITH: So mad—the defendant is—Shelby Graham is mad and wanted to get back at the defendant. That's why she made up this elaborate story with all this timeline so we could eventually be sitting here today to determine if Brinson committed this crime or not. Is Shelby Graham that elaborate? I mean you all saw her today. Is she that—is she all there enough to come up with all this—this whole story, how it happened and to get you here today all to sell this to get back at Brinson? Is that why we're here today?

Or are we here—she's simply telling the truth. She's having to cry out. Finally she gets enough support through her mother, through the victim advocate, and through the officer. Someone's finally going to listen to her.

The State Attorney's Office files on complaint affidavits every day. Our office—I mean there's a reason that process exists. And that's a—the reason is just like this. Victims aren't very—when things happen like this, victims don't usually—domestic violence victims don't want to go want to go [sic] forward a lot of the times. It doesn't mean the crime did not happen. But they don't want to go forward. And there's a number of reasons for that. A lot of them have to do with fear.

MS. MORRIS: Objection; facts not in evidence.

THE COURT: Be overruled.

MR. SMITH: A lot of them have to do with fear. A lot of them have said they think the defendant or the person actually loves them. And they may but he still might get angry and do something. It doesn't mean the crime didn't happen.

The State—we actually have an obligation to stand up for victims that don't won't stand up for themselves. And I'll submit to you, after some time, finally Shelby could stand up for herself. But the State has an obligation to file on cases like this to protect victims that need to be protected.

MS. MORRIS: Objection. Sending a message.

THE COURT: Be overruled.

MR. SMITH: So we're following up as a branch of the State Attorney's Office on this obligation. And that's why we're here today. The State did think it was worth our time to pursue this.

MS. CROY¹ : Objection; improper personal opinion.

THE COURT: You are getting close to that, Mr. Smith. So I'll sustain that objection.

MR. SMITH: Okay. Shelby Graham is a victim and a victim in the truest sense. She's a victim of her own mental deficiencies. She's a victim of addiction. And Andre Brinson preyed on these vulnerabilities. He used these addictions. He used these deficiencies to take advantage of Graham. And he wholeheartedly took advantage of this girl.

What gives us evidence that he took advantage of her? First of all, Brinson didn't have a job. He wasn't working. He comes in—testimony is he comes in and stays one night. He stays another night. Next thing you know he's not leaving. He moved himself in—willingly moved himself in into

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