Foster v. State
Decision Date | 13 November 1984 |
Docket Number | No. 83-2737,83-2737 |
Parties | 10 Fla. L. Weekly 717 Aaron Lorenzo FOSTER, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before HENDRY, HUBBART and BASKIN, JJ.
This is an appeal from a final judgment of conviction and sentence for the crime of armed robbery. The sole point on appeal is that the trial court abused its discretion in limiting defense counsel's final argument to the jury to fifteen minutes. We agree and reverse.
The Florida Supreme Court in May v. State, 89 Fla. 78, 103 So. 115 (1925), states the applicable law as follows:
89 Fla. at 80-81, 103 So. at 116.
The United States Supreme Court in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), further states the applicable law:
422 U.S. at 858, 95 S.Ct. at 2553, 45 L.Ed.2d at 598 (footnote omitted).
In accord with this established law, Florida courts have not hesitated to reverse criminal convictions where the trial court has unreasonably limited the time for defense counsel's final argument to the jury. Such convictions have been reversed where defense counsel's final argument was limited to thirty minutes in a grand theft and resisting arrest case involving multiple defendants, Pittman v. State, 440 So.2d 657 (Fla. 1st DCA 1983), to twenty-five minutes in a first degree murder case, Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984), to twenty minutes in an assault with intent to commit murder case, May v. State, supra, to ten minutes in a burglary and grand theft case, Stanley v. State, 453 So.2d 530 (Fla. 5th DCA 1984), and to five minutes in an illegal possession of intoxicating liquor case. Cooper v. State, 106 Fla. 254, 143 So. 217 (1932). Running through all of these cases is the court's concern that where human liberty is at stake, as in a criminal case, considerable leeway must be given to defense counsel in arguing his case to the jury. To be sure, defense counsel is not entitled to filibuster the case or engage in unreasonably long arguments, but nonetheless wide latitude must be given counsel in arguing his case to the jury and ordinarily arguments restricted to thirty minutes or less are considered suspect.
Turning to the instant case, the defendant herein was charged with a serious felony punishable by life imprisonment. § 812.13(2)(a), Fla.Stat. (1983). The trial below lasted three days during which the state introduced eleven physical exhibits into evidence and presented five witnesses who were, in turn, extensively cross-examined. "THE COURT: Okay. How much time do you want to argue?
Admittedly, the state's case was a strong one, which included inter alia photographs taken during the commission of the robbery depicting a person resembling the defendant as the perpetrator; the defendant himself presented no witnesses or physical evidence. At the conclusion of the trial, the following colloquy occurred:
All right, then. Fifteen minutes to a side.
(T. 200-02) (emphasis added).
The record further reflects that defense counsel was cut off in both his opening and concluding arguments to the jury and had additional points to argue which the trial court would not allow him to make.
Plainly, the trial court did not allow defense counsel to argue to the jury for more than fifteen minutes because it felt counsel had very little to talk about. In our view, however, this was an insufficient basis to so restrict defense counsel's argument because it was for the jury, not the trial judge, to determine the strength or weakness of the proffered defense. Herring v. New York, 422 U.S. at 858, 95 S.Ct. at 2553, 45 L.Ed.2d at 598. Moreover, the defendant was charged with a serious felony punishable by life imprisonment and the evidence presented at trial, although not complex, was somewhat extensive, the trial having lasted three days. The defense at trial was mistaken eyewitness identification, together with a standard reasonable doubt defense, and the defendant was entitled to develop that argument before the jury. Admittedly, his counsel faced a difficult task of persuading the jury of this position in view of the strength of the state's case, but he was entitled to a fair The final judgment under review is reversed and the cause is remanded to the trial...
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