Fryer v. State, 96-156
| Citation | 693 So.2d 1046 |
| Decision Date | 14 May 1997 |
| Docket Number | No. 96-156,96-156 |
| Parties | 22 Fla. L. Weekly D1195 Larry William FRYER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Ada Manzano Avallone, Special Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, for appellee.
Before NESBITT, GODERICH and SORONDO, JJ.
Larry William Fryer appeals a judgment of conviction and sentence for burglary of an occupied structure and petit theft. We reverse.
Fryer was convicted of stealing $350 to $400 worth of aluminum from an aluminum window and sliding glass door manufacturing company. The state's case rested on the testimony of Sergeant Carlos Hernandez. Hernandez was working off duty doing "interior security" for the company.
Hernandez testified that he saw Fryer moving aluminum parts inside the loading area of the company. The officer then called for backup and, when it arrived, he ran to the area where he last saw the suspect. When he got there, he saw Fryer outside the twelve to eighteen foot fence topped with barbed wire that surrounded the loading area. Hernandez ordered Fryer to freeze; Fryer complied and was arrested. On cross-examination the sergeant recalled that Fryer was not cut, scratched, or bleeding when he was apprehended.
Defense counsel began his closing argument by declaring that Fryer could not have been the person Hernandez saw in the loading area given the absence of any scratches that should have been caused by climbing over barbed wire. Counsel then made the following unobjected-to comment:
I had a nightmare last night that you would come and look at the testimony of Officer Hernandez and think he was honest, or he seemed to be an honest man. He seemed to be a straightforward man. Why should I assume he is not telling the truth and convict on that. The nightmare was, that you would convict an innocent person on the word of Officer Hernandez, because he seemed to be telling the truth.
To this improper expression of personal opinion the prosecutor responded: (emphasis added). At that point the trial judge sustained an objection lodged by defense counsel and noted that the motion counsel wanted to make would be reserved. Inexplicably, the prosecutor continued: (emphasis added). Another defense objection was this time overruled.
Another aspect of defense counsel's closing argument was that Hernandez, having been paid by the owner of the manufacturing company, had an interest in seeing that someone be convicted of committing the type of crime he was hired to prevent. In response to this theory the prosecutor, at least six times by our count, personally vouched for the credibility of the officer. For example: "If you believe the Sergeant, I am telling you to believe him, because he is a truthful man." While these six instances passed without objection, another did not:
(emphases added).
It is beyond dispute that these arguments are patently improper and violative of the rules of professional conduct. See Cisneros v. State, 678 So.2d 888 (Fla. 4th DCA 1996); Davis v. State, 663 So.2d 1379 (Fla. 4th DCA 1995); State v. Ramos, 579 So.2d 360 (Fla 4th DCA 1991); Singletary v. State, 483 So.2d 8, 10 (Fla. 2d DCA 1985); R. Regulating Fla. Bar 4-3.4(e). The only issues in this case are whether the prosecutor's arguments were a "fair reply" or "invited response" to defense counsel's arguments and, if not, whether they were harmless beyond a reasonable doubt.
With regard to the notion of an "invited response," we find the comments of the Supreme Court in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), to be particularly instructive:
The situation brought before the Court of Appeals was but one example of an all too common occurrence in criminal trials--the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action. Clearly two improper arguments--two apparent wrongs--do not make for a right result. Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial. To help resolve this problem, courts have invoked what is sometimes called the "invited response" or "invited reply" rule....
* * *
[T]he Court must consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly. In this context, defense counsel's conduct, as well as the nature of the prosecutor's response, is relevant.
* * *
[T]he reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were "invited," and did no more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction.
Id. at 11-13, 105 S.Ct. at 1044-45.
While defense counsel's comments in this case may have been inviting, the prosecutor's response went well beyond simply "righting the scale." Given that the state's case hinged on the believability of Officer Hernandez, we cannot help but conclude that the prosecutor's repeated declarations of his personal belief in the officer's veracity, and his statements that defense counsel "knew" his client was guilty, had a detrimental effect on the jury's ability to judge the officer's testimony fairly.
Our conclusion is bolstered by what occurred during the jury's deliberations. At some point during those deliberations, the jury sent the trial court a note which read: "We want to go over the testimony of Officer Hernandez pertaining to his identification of the defendant inside the fenced area." After consulting with counsel for both sides, the trial court informed the jury that no transcript was available and asked them to rely on their "collective memory." Afterward, the jury sent the trial court two more notes indicating they could not come to a unanimous decision. The court asked them to continue deliberating, and they ultimately arrived at the verdicts on which the trial court based its judgment.
These facts reinforce our conclusion that the prosecutor's remarks compromised the jury's ability to fairly evaluate the evidence and, in turn, Fryer's right to a fair trial. These same facts compel the conclusion that the error cannot be considered harmless. Here, just as in Cisneros, 678 So.2d at 890, and Davis, 663 So.2d at 1382, we cannot say beyond a reasonable doubt that the impermissible arguments did not contribute to the verdict.
Accordingly, we reverse the conviction and sentence and remand for a new trial.
I agree with the majority that the defendant's conviction for these crimes must be reversed. I write separately to expand on the facts of this case and address certain issues not raised in the majority opinion.
In what was, by all accounts, an immaculately fair trial, both the prosecutor and defense counsel decided to conclude their presentations by running amok in their closing arguments. A detailed review of this monumental display of attorney misconduct follows:
The first shot in this battle was fired by the defendant's attorney when he said in closing:
I had a nightmare last night that you would come and look at the testimony of Officer Hernandez and think he was honest, or he seemed to be an honest man. He seemed to be a straightforward man. Why should I assume he is not telling the truth and convict on that. The nightmare was, that you would convict an innocent person on the word of Officer Hernandez, because he seemed to be telling the truth.
Before he had even fully warmed up, defense counsel improperly expressed his opinion about the honesty of Officer Hernandez, the credibility of the officer and the innocence of his client. Later in his summation defense counsel refers to the officer as a "salesman" on five different occasions. 1 The suggestion in both of these arguments being that Hernandez was a dishonest man.
In addition to his first comment, during his summation, defense counsel on at least three other occasions impermissibly injected his opinion of his client's innocence,
Larry Fryer is innocent of any burglary. With everything I know and everything I believe, he is innocent.
Shortly thereafter he said,
Larry Fryer is innocent. I know.
Less than two lines later in the trial transcript he again says,
I know with everything that I know that Larry Fryer is not guilty. He was outside the establishment.... I am not going to come here and start covering for someone who I think is a burglar, that is not what is happening.
In this last statement he improperly suggests that he would not represent the defendant if he were truly...
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