Broge v. State, s. 72--399--72--402

• Decision Date: 08 January 1974
• Docket Number: Nos. 72--399--72--402,s. 72--399--72--402
• Parties: William George BROGE et al., Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 280

288 So.2d 280

William George BROGE et al., Appellants, v. STATE of Florida, Appellee.

Nos. 72--399--72--402.

District Court of Appeal of Florida, Fourth District.

Jan. 8, 1974.

Rehearing Denied Feb. 8, 1974.

Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, Nelson E. Bailey and Basil S. Diamond, Asst. Attys. Gen., West Palm Beach, for appellee.

FERRIS, JOHN G., Associate Judge.

Following a five weeks jury trial, appellants were convicted on various felony riot charges which stemmed from a labor dispute. Appellants do not challenge the sufficiency of the evidence but complain mainly of improper remarks and statements of the prosecutor. The most serious instance occurred during final argument when the prosecutor said:

'If you consciously believe this case has been handled improperly by the State or by the Court, do it. Don't feel badly about it. My duty, as I told you, is to see that these defendants get a fair trial and that is your duty also. I cannot believe under any stretch of the imagination, under any of these interpretations of these facts in this case, that you can believe that.'

While the quoted comment, even though ambiguous, seems to be relaying the prosecutor's personal belief on the believability of portions of the evidence, it is of course lifted out of context of the entire argument and its relationship to argument of defense counsel. In his closing argument, defense counsel castigated the testimony of the policemen who testified, commenting on the 'false testimony' and 'bold lies' of these witnesses. He accused the prosecution of 'buying' evidence and knowing that the police officers had deliberately lied in this case. In rebutting those comments and others, the prosecutor advised the jury that if they believed those accusations as to the testimony of the police officers they should immediately find the defendants not guilty and then made the comment above quoted.

The Supreme Court was faced with a similar situation in Henderson v. State, 1927, 94 Fla. 318, 113 So. 689, and, after reviewing the alleged improper remarks and the arguments of the defense which preceded them, said:

'. . . we cannot afford to lay down a rule here which would make it hereafter possible for an attorney for the defendant in any hard fought criminal case to deliberately goad the state's attorney, by unfounded or improper charges and insinuations, into heated,...