D'AMBROSIO v. State, 98-2032.

• Decision Date: 28 May 1999
• Docket Number: No. 98-2032.,98-2032.
• Citation: 736 So.2d 44
• Parties: Michael J. D'AMBROSIO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

736 So.2d 44

Michael J. D'AMBROSIO, Appellant, v. STATE of Florida, Appellee.

No. 98-2032.

District Court of Appeal of Florida, Fifth District.

May 28, 1999.

Law Offices of Steven G. Mason, Orlando, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for appellee.

DAUKSCH, J.

This is an appeal from a conviction for capital sexual battery. The evidence is that appellant raped his daughter numerous times and was charged and convicted of this one rape. Because of his age and her age he was sentenced to life in prison. § 794.011(2)(a), Fla.Stat. (1997).

We most reluctantly reverse the conviction and remand this case for a new trial because of prosecutorial misconduct. In sending the case back for a new trial we note that the judge erred in failing to instruct the jury regarding the age of the defendant. Because the age, over 18, of the defendant is one of the elements to be proved to establish the crime charged, capital sexual battery, it must be included within the instructions, along with the proof. We also note, but do not decide as clear error, that an instruction on attempted sexual battery should have been given. The evidence did not eliminate the need for this requested instruction. Wilson v. State, 622 So.2d 31 (Fla. 1st DCA 1993),approved, 635 So.2d 16 (Fla.1994) (absolutely no evidence of attempt; evidence only allowed jury to choose that appellant committed the completed crimes as charged or that he neither committed nor attempted any of the crimes charged); Randolph v. State, 591 So.2d 279 (Fla. 5th DCA 1991),dismissed, rev. den., 634 So.2d 626 (Fla.1994) (attempt instruction is not to be given where only evidence proves a completed offense); Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987); Henry v. State, 445 So.2d 707 (Fla. 4th DCA 1984); see also Gillespie v. State, 440 So.2d 8, 10 (Fla. 1st DCA 1983),

rev. den., 475 So.2d 222 (Fla.1985) ("Even if the evidence is overwhelming that the defendant was guilty of the crime with which he is charged, the court must give a charge on a lesser included offense as to which there is any evidence. However, the jury has no right to exercise its `pardon' power if there is no evidence of a lesser included offense and no instruction on attempt as a lesser included offense should be given because it would only confuse the jury").

This is a case like many which seem to be appearing in appellate courts for these past few years and about which all appellate judges, including those on our supreme court, are becoming more and more concerned. See e.g. Ruiz v. State, 24 Fla.L. Weekly S157, ___ So.2d ___, 1999 WL 176049 (Fla. April 1, 1999). It is also one of those cases where the various district courts, and various members thereof, are divided on a proper resolution of the ever-increasing problem. That division has to do with the concept of fundamental error; namely, when does prosecutorial misconduct justify the grant of a new trial in the absence of a proper objection below.¹ Some of the cases on point are as follows: Henderson v. State, 727 So.2d 284 (Fla. 2d DCA 1999) (prosecutor's remarks that defendant "would not know truth if it hit him up side the head," that acquittal would mean that witnesses were "all a pack of liars" and that defendant had invented a "fairy tale" did not constitute fundamental error and thus defendant waived review by failing to object); Ross v. State, 726 So.2d 317 (Fla. 2d DCA 1998) (without objection, court hesitates to find reversible error; court nonetheless found as fundamental error repeated comments of prosecutor belittling defense witnesses and defendant with terms such as "pathetic," "insulting," "preposterous," "nonsense," and "bologna."); Bell v. State, 723 So.2d 896 (Fla. 2d DCA 1998) (prosecutor's vouching of officer's testimony, telling jury to send a message, argument of matters not in evidence, and comment on defendant's exercise of his right to a jury trial did not constitute fundamental error; Judge Altenbernd, in his concurrence, however, emphasized the need for a continuing education videotape for prosecutors and defense attorneys demonstrating improper closing arguments and that they are against the rules and should never be made); Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998) (improper bolstering of police officer testimony and mention of an officer's funeral in today's newspaper together with other improper comments cumulatively rose to the level of fundamental error); DeFreitas v. State, 701 So.2d 593 (Fla. 4th DCA 1997) (new trial required where numerous acts of prosecutorial misconduct were of such a nature and character that the cumulative and collective effect rose to the level of fundamental error); Knight v. State, 672 So.2d 590 (Fla. 4th DCA 1996) (combination of personal attacks on defense counsel, arguing facts not in evidence, and bolstering of police officer testimony in closing argument rose to level of fundamental error destroying defendant's right to a fair trial); State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995) (outside of the exceptional circumstance where the error rises to the level of being fundamental, in order to preserve a claim of improper prosecutorial misconduct, objection must be made and if the objection is sustained defendant must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek the relief of a new trial); Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984),pet. for rev. den., 462 So.2d 1108 (Fla.1985) (when the jury is walking a thin line between a verdict of guilt and innocence, the prosecutor cannot be allowed to push the jury to the side of guilt with improper comments).

A reading of these cases, and of other cases on point, shows that sometimes a new trial is required, sometimes not. In Ruiz, the most recent one from the supreme court, the answer is not crystal clear on this question because that case held, as have others from all the courts that "When the properly preserved comments are combined with additional acts of prosecutorial overreaching..." a new trial is required. As is usual the appellate courts do not lay much of the blame on the trial judge in those cases. But it goes without saying that had the trial judge stepped in and put an end to the bad behavior there may not have been a need for another trial. See Judge Schwartz's comment in Borden, Inc. v. Young, 479 So.2d 850, 851 (Fla. 3d DCA 1985), rev. den., 488 So.2d 832 (Fla.1986) (Schwartz) ("it is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties my fight it out on unseemly terms of their own choosing"); contra Murphy v. Int'l Robotics Systems, Inc., 710 So.2d 587 (Fla. 4th DCA),

rev. granted, 722 So.2d 193 (Fla.1998).

In this case the problem of unobjected-to error, fundamental error, is not as much a problem as in others because at the beginning of final arguments at trial the judge instructed the attorneys "I don't like it when lawyers object during closing arguments." While this admonition did not prevent objections it certainly may have had a limiting effect. It could have kept objections out. Some of the improper comments made in this case were:

All of those unsupported innuendos, unconnected inferences and baseless speculation that Mr. Bross is praying that you will engage in.

* * * * * *

And if you do that, you just might be led away from what the evidence is and find this guy not guilty. He's praying you do that. And he does it—he did it with every witness, every witness.

* * * * * *

This is just not going to happen. I can use all the words I can about absurd, ridiculous. It's just not going to happen, that type of thing, and there's nothing in this case to support that. And everybody in this courtroom knows that.

* * * * * *

And you know, when he says when he's yelling about the cases and about this case, well, you know, my response to that is, doesn't that demonstrate to you the vigor and the conviction I have about this case.²

* * * * * *

Mr. Bross points out why attack the defense attorney. I am not attacking him personally. I did not say anything about his family. I'm not attacking him personally. I'm pointing out some of the things he did in this trial and his tactics he did in this trial. That's what I'm pointing out to you. I'm not attacking him personally.

* * * * * * If you step back and look at the evidence in this case and not be inundated with the sea of confusion that Mr. Bross is praying you get inundated with. And there is no life raft in that sea.

* * * * * *

It is obvious. It is so apparent what justice is in this case, to find this defendant guilty for what everyone in this courtroom knows he did.

It is improper to make derogatory comments about opposing counsel. It is improper for a lawyer to give a personal opinion as to either the justness of the cause or the guilt or innocence of the accused. R. Regulatory Fla. Bar 4-3.4(e).

Repeatedly referring to the defendant's defense as innuendo, speculation and "a sea of confusion" that defense counsel "prays you will get lost in" is an improper attack of the defense and defense counsel....