Chavez v. State

Citation215 So.2d 750
Decision Date20 November 1968
Docket NumberNo. 68--24,68--24
PartiesArmando CHAVEZ, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Raymond E. LaPorte, of Ragano & LaPorte, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

MANN, Judge.

If oratory comes, can reversal be far behind? In this case a zealous prosecutor, summing up to the jury, said, 'This is your community. If you believe that Deputy Booth is lying on that witness stand, if you think that he's mistaken then you come in with a verdict of an acquittal and let him go back out in your community and handle more morphine.'

The appellant was convicted of unlawful possession of narcotics, precisely the offense he was charged with. There is nothing in the record from which we can tell whether the offensive remark, objected to by counsel, recognized by the court as objectionable in sustaining the objection and by the attorney general in argument here, contributed to the conviction. As Mr. Justice Thornal said, in Pait v. State, 112 So.2d 380 at page 385 (Fla.1959): 'We think that in a case of this kind the only safe rule appears to be that unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the judgment must be reversed.' That was a capital case, and this is not, but the accused has a fundamental right to a fair trial free from argument condemned, according to Mr. Justice Terrell, '* * * so many times * * * that the law against it would seem to be so commonplace that any layman would be familiar with an observe it.' Stewart v. State, 51 So.2d 494 (Fla.1951). See Davis v. State, 214 So.2d 41, 3rd D.C.A., Opinion filed September 24, 1968.

In Mr. Justice Drew's opinion in Grant v. State, 194 So.2d 612 (Fla.1967), which cites amply the authorities we otherwise might, he drew an apt analogy to the prosecutor's performance in this case: 'Many a winning touchdown has been called back and nullified because someone on the offensive team violated a rule by which the game was to be played.'

It is a pity. The appellant's contention that he was convicted on insufficient evidence is utterly without merit. The arresting officer closely pursued Chavez and saw him throw what, in his headlights, appeared to be a white cylindrical object out of the car window near a cigar factory. The deputy stopped Chavez about 500 feet farther, radioed for help and, when a second officer appeared to hold Chavez, went back to search for the object thrown out of the car. It turned out to be an amber bottle containing morphine. The officer testified that there was no object in the vicinity with which it might have been confused. We can find no fault with the work of the...

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23 cases
  • Barnes v. State, 98-0299.
    • United States
    • Florida District Court of Appeals
    • February 17, 1999
    ...that the law against it would seem to be so commonplace that any layman would be familiar with and observe it.'" Chavez v. State, 215 So.2d 750, 750-51 (Fla. 2d DCA 1968) (citations omitted); see also Stewart v. State, 51 So.2d 494 (Fla. 1951). Because of the closeness of the evidence and t......
  • Jones v. State
    • United States
    • Wyoming Supreme Court
    • July 14, 1978
    ...affected. The right with which we are concerned is the fundamental right to a fair trial, free from tainted argument. Chavez v. State, Fla.App., 215 So.2d 750. A reversal and remand for a new trial because of prosecutorial misconduct will not be ordered as punishment for a prosecutor's misd......
  • Peterson v. State
    • United States
    • Florida District Court of Appeals
    • December 5, 1979
    ...even more so. Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Porter v. State, supra, Glantz v. State, supra; Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968). (2) Less than half a page in the transcript later, the assistant state attorney You watched the officers. You heard them testify.......
  • Stephenson v. State
    • United States
    • Florida District Court of Appeals
    • April 21, 2010
    ...unless the appellate court can determine from the record that the improper statements did not prejudice the defendant"); Chavez v. State, 215 So.2d 750, 750 (Fla. 2nd DCA 1968) ("unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not p......
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