Ford v. State

Citation702 So.2d 279
Decision Date10 December 1997
Docket NumberNo. 96-0359,96-0359
Parties22 Fla. L. Weekly D2757 Colsson D. FORD, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Colsson Ford (defendant), appeals his conviction for sexual battery. Because we conclude that the trial court erred in failing to grant a mistrial based on the prosecutor's highly impermissible closing arguments, we reverse.

With little corroborating testimony, the case turned primarily on the credibility of the complaining witness versus that of defendant. Defendant's version and the complaining witness' version of what transpired were completely at odds with one another. The complainant testified that defendant forced himself upon her, and threatened to use non-deadly force if she did not accede to his sexual advances. Defendant testified that their sexual encounter was completely consensual. He testified that they had a conversation about the movie "Nine and a Half Weeks," which they had both seen and both agreed to partially reenact.

During closing argument, the prosecutor made a number of highly improper remarks, each of which was outside the evidence or any fair inference from the evidence. Defense counsel timely objected to each remark and made a motion for mistrial. Defendant argues on appeal that these closing argument remarks individually and collectively deprived him of a fair trial, and thus the trial court should have granted him a new trial. We agree.

It is well settled that a prosecutor must confine closing argument to evidence in the record, and must refrain from comments that could not be reasonably inferred from the evidence. See Huff v. State, 437 So.2d 1087, 1090 (Fla.1983); Thompson v. State, 318 So.2d 549, 551 (Fla. 4th DCA 1975). In this case, each of the improper closing argument comments violated this principle.

In the first of the objectionable remarks, the prosecutor improperly argued to the jury that four or five other women had accused defendant of rape:

Really, this man is 26 years old, 26 years old, now 25 last year okay. I mean what is the law of average here, how many times would a man get himself in a situation where four or five girls are going to call rape.

No reasonable construction of the evidence supports this statement. The improper and unsubstantiated suggestion that defendant had been accused of rape four or five other times was highly prejudicial and inflammatory. Although the trial court sustained a timely objection to these remarks, the trial court did not grant a mistrial.

Unsubstantiated statements that concern references to other crimes committed by a defendant are "particularly condemned." Ryan v. State, 457 So.2d 1084, 1090 (Fla. 4th DCA 1984). The prosecutor's comments in this case suggested that defendant had been accused of raping several other women and thus must have a propensity to commit rape. The jury could have surmised that the prosecutor knew of prior complaints against defendant that had not been otherwise revealed to them.

The implication of a defendant in other crimes is considered presumptively prejudicial. See Williams v. State, 692 So.2d 1014, 1015 (Fla. 4th DCA 1997); Cuthbertson v. State, 623 So.2d 778, 779 (Fla. 4th DCA 1993). The presumption of prejudice arises because of "the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged." Straight v. State, 397 So.2d 903, 908 (Fla.1981).

The next objectionable comment occurred shortly after the improper reference to the prior rape accusations. The prosecutor referred to defendant's statement to a friend that he had "a little fun" with the complainant as "rapist talk." Defendant objected to this remark as being outside the evidence but the trial court overruled this objection. The characterization of defendant's statement as "rapist talk," without any basis in the evidence, constituted improper argument. See Carter v. State, 332 So.2d 120, 125-26 (Fla. 2d DCA 1976); see also Knight v. State, 672 So.2d 590, 591 (Fla. 4th DCA 1996). If the reference to "rapist talk" constituted the prosecutor's opinion, it was an improper statement of opinion without basis in fact or in the evidence. See Washington v. State, 687 So.2d 279, 280 (Fla. 2d DCA 1997).

Finally, during closing argument, the prosecutor referred to the movie "Nine and a Half Weeks," which defendant had testified was the model for the consensual sexual activities between him and the complainant. The prosecutor argued:

Well, he told you about the little acts that were done and that it was part of the movie. But, what did he leave out, he left out the humiliating words and demands that were given in this movie to the woman. What did he leave out, he left out the ending of the movie. A movie admittedly he liked, very much liked it so much that he fantasized about it and when he had girlfriends over or a woman over, she didn't have to be a girlfriend, he lives this fantasy, he left the ending out because the ending shows--

At this point, defense counsel objected that the movie was not in evidence and the trial court sustained the objection. Nevertheless, this did not stop the prosecutor from continuing with this improper argument immediately thereafter:

Doesn't tell you the movie's ending, okay. Ask yourself, why, why wouldn't he tell us the way the movie ends.

The prosecutor's blatant attempt to insinuate to the jury that the movie has a sinister ending that defendant had intentionally omitted from his testimony, far exceeds the bounds of permissible argument. This argument cannot be seen as a fair comment on the evidence because there was absolutely no evidence of the movie's ending. By making this argument, the prosecutor implied that she had additional knowledge of an ending to the movie that would be adverse to defendant.

An argument suggesting to the jury that there is evidence harmful to the accused that the jury did not hear is highly improper. See Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993); Thompson v. State, 318 So.2d 549, 551 (Fla. 4th DCA 1975); Stewart v. State, 622 So.2d 51, 56 (Fla. 5th DCA 1993). As stated in Thompson:

[T]he inquiry should be whether the prosecutor's expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused's guilt.

318 So.2d at 552.

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13 cases
  • Scott v. Sec'y
    • United States
    • U.S. District Court — Middle District of Florida
    • July 31, 2017
    ...in presenting closing argument, but must confine their argument to the facts and evidence presented to the jury. See Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997). The State is permitted to comment on the evidence and testimony and offer inferences. See Bertolotti v. State, 476 So. 2d 1......
  • Dixon v. Sec'y
    • United States
    • U.S. District Court — Middle District of Florida
    • March 26, 2018
    ...counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence."); Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997); Franqui, 804 So. 2d at 1195. In this case, the State was commenting on the fact that Defendant was attacked by friends of t......
  • Vilseis v. State
    • United States
    • Florida District Court of Appeals
    • July 17, 2013
    ...will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Ford v. State, 702 So.2d 279, 280 (Fla. 4th DCA 1997) (quoting Straight v. State, 397 So.2d 903, 908 (Fla.1981)). Reversed and remanded for a new trial.CIKLIN and FORST, JJ., ...
  • Williams v. State, 3D07-1542.
    • United States
    • Florida District Court of Appeals
    • April 22, 2009
    ...suggesting to the jury that there is evidence harmful to the accused that the jury did not hear is highly improper. See Ford v. State, 702 So.2d 279 (Fla. 4th DCA 1997); Stewart v. State, 622 So.2d 51, 56 (Fla. 5th DCA 1993) (concluding that defendant was entitled to new trial where the pro......
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