Brown v. State, 95-2512

• Decision Date: 28 August 1996
• Docket Number: No. 95-2512,95-2512
• Citation: 678 So.2d 910
• Court: Florida District Court of Appeals
• Parties: 21 Fla. L. Weekly D1931 Michael BROWN, Appellant, v. STATE of Florida, Appellee.

Page 910

678 So.2d 910

21 Fla. L. Weekly D1931

Michael BROWN, Appellant, v. STATE of Florida, Appellee.

No. 95-2512.

District Court of Appeal of Florida Fourth District.

Aug. 28, 1996.

Lewis A. Fishman of Lewis A. Fishman, P.A., Plantation, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michelle Konig, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

The state's case at trial depended entirely on the testimony of two witnesses whose accounts differed from one another in several respects. Additionally, one's testimony was internally inconsistent and impeached on several points. During closing argument, after referring to specific testimony defense counsel argued that the witnesses had lied, saying "they are liars, I submit to you." Without objection from the prosecutor, the trial judge interrupted:

"JUDGE: That is just improper for you to call anybody a liar. It's up to the jury to determine who might be mistaken or wrong.

"COUNSEL: I was just--

"JUDGE: I'm getting so concerned about this that I had to talk to you a couple times, if the state doesn't object. It was improper for someone to call people liars.

"COUNSEL: I was just commenting on the evidence.

"JUDGE: There is no evidence that anybody is a liar. If you will point that out to me. There is all kind of evidence, conflicting testimony, but because somebody isn't consistent doesn't mean they are necessarily a liar. It's not up to you in this court to call anybody a liar. Do you understand that?

"COUNSEL: Yes, Your Honor." [emphasis supplied]

At that point, counsel tried to proceed with his point that the witnesses had lied but without using the term "liar". The jury returned a verdict of guilty on all counts. We reverse.

Section 90.106, Florida Statutes (1995), provides that "[a] judge may not ... comment to the jury upon ... the credibility of the witnesses." The Law Revision Council's Note accompanying this provision of the Evidence Code explains as follows:

"The basis for this section was expressed in Hamilton v. State, 109 So.2d 422, 424 (Fla.3rd Dist.1959):

'The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments ... overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge's view as to the weight of the evidence, the credibility of a witness, or the guilt of the accused, it thereby destroys the impartiality of the trial.... ' "

In Raulerson v. State, 102 So.2d 281 (Fla.1958), the court quoted with approval the following:

" 'a trial court should avoid making any remark within the hearing of the jury that is capable directly or indirectly, expressly, inferentially, or by innuendo of conveying any intimation as to what view he takes of the case or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.' "

102 So.2d at 285. The court explained:

"the facts are left to the independent and unbiased consideration of the jury and the judge should not enter their sphere of operation else the accused would be deprived of his right to trial by a jury. Because of the judge's exalted position his appraisal of testimony would likely give such emphasis to it as to influence the jury in their deliberation."

102 So.2d at 285.

We conclude that the comment on the credibility of the prosecution witnesses was prejudicial. The prosecution's case was founded entirely on the credibility of the two witnesses, there being no tangible or objective evidence of the crimes charged, or other witnesses. The jury was asked to decide whether those witnesses were telling the truth in spite of the inconsistencies and contradictions. For the trial judge to say in open court during final argument that there is no evidence that either witness had lied amounted to the trial judge's assessment of the very issue reposed in the jury. There is nothing in this record from which we could deduce that this comment had no effect on the jury. ¹ Indeed, given the preminent role of the judge in the courtroom and the nature of the factual dispute given to the jury to resolve, it seems clear to us that his comment might well have affected the outcome. Thus, on this ground alone a new trial is required.

To facilitate retrial, we briefly address issues capable of arising again. It is clearly not improper for either counsel in closing argument to characterize specific witnesses as liars, so long as counsel relates the argument solely to the testimony of the witnesses and evidence in the record. As the court explained in Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988):

"Appellant argues that the prosecutor improperly made repeated references to defendant's testimony as being untruthful and to the defendant himself as a 'liar.' It may be true that the prosecutor used language that was somewhat intemperate but we do not believe he exceeded the bounds of proper argument in view of the evidence. When counsel refers to a witness or a defendant as being a 'liar,' and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration. There was no impropriety."

510 So.2d at 865. Counsel's argument in this case was manifestly referring to specific testimony given by the witnesses so characterized. The trial judge was wrong to suggest that this argument was improper.

In addition to foregoing, defendant also argues that the trial judge unreasonably criticized defense counsel in the presence of the jury for conduct that was not improper. He argues that the castigation of counsel impaired the fairness of the trial for the defendant. In particular he refers us to an incident during voir dire examination of jurors and another one during closing argument.

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