Francis v. State
| Decision Date | 24 June 1980 |
| Citation | 384 So.2d 967 |
| Parties | Danford FRANCIS, Jr., Appellant, v. The STATE of Florida, Appellee. No 78-2151. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Peter Raben and Herb Smith, Asst. Public Defenders, Miami, for appellant.
Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
Before HUBBART, J., and CHAPPELL, BILL G., Associate Judge and PEARSON, TILLMAN (Ret.), Associate Judge.
Defendant, Danford Francis, Jr., was convicted of armed robbery, and he now appeals on the ground that a mistrial should have been granted due to the prosecutor's closing remarks as to his personal belief in the credibility of the identification witness, Beamer Burley.
These remarks 1 in which the prosecutor asserted his personal opinion as to the credibility of the witness, Burley, appear to be in violation of DR7-106(C)(4) Code of Professional Responsibility, but under this rule he may argue, on his analysis of the evidence, for any position or conclusion with respect to the credibility of a witness. The question, thus raised, is whether the remarks are of such a prejudicial nature as to warrant a reversal. We think not.
We cannot accept the argument that the prosecutor's statement, "I think he is truthful", is a highly prejudicial and unfair statement constituting reversible error when defense counsel reviews the testimony of the same witness and states, "He is not lying to you." 2
In reviewing defendant's claims of other improper remarks, we also fail to find the prosecutor's remarks concerning the absent police officer 3 to be suggestive that other evidence of an incriminating nature would be available if he were present. By stipulation between counsel, the officer's report was to be admitted in evidence, and the record reveals that both the prosecutor and defense counsel had referred to the officer's absence in their opening statements. Further, during the State's presentation of the case, the court instructed the jury that if the officer was present, he would testify consistent with his police report which was in evidence.
Lastly, we consider defendant's claim that the prosecutor improperly argued his guilt or innocence on two separate occasions. 4 Though the rule definitely prohibits improper argument as to the guilt or innocence of an accused, we must review the record to see if there is an acceptable basis to support the remarks made in this particular case, and we must decide whether such remarks deprived the defendant of a fair trial upon consideration of the entire record. 5
Our review of the record shows that during his opening statement, defense counsel asked the jury to pay careful attention to the testimony of Detective Heatherington regarding the photo identification procedures which were employed in this case because it is very unusual. Obviously having been forewarned that defense counsel would argue this subject in his closing argument, the prosecutor spoke to this matter in his opening summary. Likewise, the statement concerning fingerprints was in direct response to final argument for the defense. 6
In considering the total record of this case, we find that the prosecutor's expressions of opinion as to the credibility of the witness, Beamer Burley, individually or collectively, were not so tainted as to lead a jury to a wrongful verdict and that any possible harm was properly nullified by the curative instruction given by the court. 7 Further, we find ample basis in the record to support the other remarks complained of. 8
The trial judge acted properly in not granting a mistrial.
Affirmed.
1 Defendant complains of prosecutor's remarks in final arguments on three separate occasions:
a. " . . . He said, 'Those particular words he used up there, I didn't hear the accent on', and he is trying to be truthful, but it would have been very easy for him to simply say, 'Yes, I heard the accent', but I think he was being very truthful to you, and he was trying to tell you exactly what he perceived. . . . "
b. " . . . I don't think Beamer Burley . . . here he is, under subpoena to come in and testify, and I don't think he really feels this case . . . I don't think he really is that interested in it, but he is testifying as a State's witness, and he testified as to the truth . . . "
c. " . . . Now, Beamer works in an adult theater, but he sat down before you, and I think you could see this is a guy...
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Tacoronte v. State, 81-867
...as to whether a possible twenty-five year sentence of imprisonment would motivate him to lie on the witness stand. See Francis v. State, 384 So.2d 967 (Fla. 3d DCA 1980), for the proposition that under Rule DR 7-106(C)(4), Code of Professional Responsibility, counsel may argue, on his analy......
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Fryer v. State
...DCA 1987); Blackburn v. State, 447 So.2d 424 (Fla. 5th DCA 1984); Richmond v. State, 387 So.2d 493 (Fla. 5th DCA 1980); Francis v. State, 384 So.2d 967 (Fla. 3d DCA 1980). The state's argument that these comments were invited by the defense attorney's improper assault on the officer's integ......
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Lewis v. State, No. 3D98-2039
...1993); Blackburn v. State, 447 So.2d 424 (Fla. 5th DCA 1984); Richmond v. State, 387 So.2d 493 (Fla. 5th DCA 1980); and Francis v. State, 384 So.2d 967 (Fla. 3d DCA 1980). The state does not attempt to individually justify any of the un-preserved comments. Rather, it argues that the defenda......
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Buckner v. State
...DCA 1987); Blackburn v. State, 447 So.2d 424 (Fla. 5th DCA 1984); Richmond v. State, 387 So.2d 493 (Fla. 5th DCA 1980); Francis v. State, 384 So.2d 967 (Fla. 3d DCA 1980). In Lopez v. State, 555 So.2d 1298 (Fla. 3d DCA 1990), we held that in order for a prosecutor's comment to merit a new t......