Caraballo v. State
Citation | 762 So.2d 542 |
Decision Date | 09 June 2000 |
Docket Number | No. 5D99-2542.,5D99-2542. |
Parties | Juan CARABALLO, Appellant, v. STATE of Florida, Appellee. |
Court | Court of Appeal of Florida (US) |
James B. Gibson, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
Juan Caraballo was convicted of tampering with physical evidence and possession of drug paraphernalia. The trial court denied his motions for judgment of acquittal and for a new trial which were based mainly upon improper comments by the prosecutor during closing argument. We conclude the cumulative effects of the prosecutor's improper conduct constitute fundamental error and reluctantly reverse for a new trial.
Deputy Sheriff Sherry and Deputy Sheriff Cruz responded to a complaint from a business establishment. It was night when they arrived on the scene. Caraballo was in front of the business. Sherry spoke to Caraballo and noticed an odd odor emanating from his clothing. It was an odor which Sherry had smelled on an "unknown number of occasions" and which he recognized as crack cocaine residue. Sherry then asked Caraballo if he had any drug paraphernalia. Sherry told him if he gave the deputy any paraphernalia he might have, he would send him on his way. Caraballo accepted the offer and gave Sherry his crack pipe. Sherry told him to go home. A presumptive test on the pipe residue tested positive for crack cocaine.
Later that night, Sherry again saw Caraballo with three black males near the same area where he had seen him earlier. It was a location which Sherry knew was prominent for narcotics sales. As the deputies approached Caraballo, defendant raised his right hand towards his mouth, took a couple more steps, stopped, turned around and walked towards them. He was extremely nervous, refused to make eye contact, looked down, shifted from one leg to the other, looked around and fidgeted with his hands. He was reluctant to answer Sherry's questions.
Sherry asked Caraballo to open his mouth and stick out his tongue to see if he had hidden any cocaine. Defendant complied and Sherry saw a one eighth-inch by one eighth-inch waxy substance on his tongue which, based upon his training and experience, he recognized as crack cocaine. Sherry asked Caraballo to spit out the object whereupon, he closed his mouth and turned away from the deputies as if to leave. Sherry again asked appellant to open his mouth. Sherry testified that he saw Caraballo swallow. When he finally opened his mouth, there was nothing there.
Deputy Cruz testified that he did not see what, if anything, was inside defendant's mouth, but in his written report, he indicated that he had "observed an off-white square-like substance in his [Caraballo's] mouth."
To understand the issue of fundamental error which this case presents, we need to examine the following remarks made by the prosecutor during his closing argument:
Caraballo contends that the trial court erred by denying his motion for new trial based on the cumulative effect of the improper prosecutorial comments. He contends that the severity of the comments, in which his defense attorney and the theory of his defense were caustically attacked, were so inflammatory as to have denied him a fair trial. He contends additionally that the prosecutor improperly bolstered his witnesses and inferred that there was other evidence of his guilt which was not presented at trial.
Caraballo relies on Ruiz v. State, 743 So.2d 1 (Fla.1999) in which the supreme court recently reiterated the standard for attorneys in closing arguments:
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