Gabriel v. State

• Decision Date: 27 June 2018
• Docket Number: No. 4D17–1363,4D17–1363
• Citation: 254 So.3d 558
• Parties: Jeffrey GABRIEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

254 So.3d 558

Jeffrey GABRIEL, Appellant,

v.STATE of Florida, Appellee.

No. 4D17–1363

District Court of Appeal of Florida, Fourth District.

June 27, 2018

Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez–Orosa, Senior, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

In this appeal from appellant's conviction for grand theft, appellant contends that the prosecutor's closing argument merits reversal on multiple grounds. After the prosecutor implied to the jury in closing argument that mere presence at the scene of a crime was sufficient to support a conviction, the court refused to give appellant's requested instruction on "mere presence." The trial court erred in failing to give the appellant's instruction. It also erred in overruling appellant's objection to the prosecutor's references to facts beyond the evidence. Further, the prosecutor referenced facts not in evidence and made several comments negatively reflecting on appellant's right to a jury trial. Because we cannot conclude that the cumulative effect of all of the comments were harmless beyond a reasonable doubt, we reverse.

In 2015, the State charged appellant, Jeffrey Gabriel, by information with one count of petit theft under section 812.014, Florida Statutes (2015), alleging he knowingly obtained the property of American Express, merchandise at a value of $300 or more but less than $5,000. The State also charged Claudel Thermidor, co-defendant, with criminal use of personal identification information, grand theft, and fraudulent use of a credit card. At trial, a detective testified that he had responded to a home burglary where the homeowner's American Express card was taken. The detective contacted American Express, and he learned the card had been used on the same day as the burglary at several retail stores about a block away from the home. Surveillance footage from the stores showed the co-defendant Thermidor, appellant, and another person checking out of the stores. The footage caught Thermidor handing the stolen credit card to the cashier to purchase merchandise, some of which was handed to Thermidor by appellant.

The detective arrested appellant, who gave a statement. He admitted to being with Thermidor at the stores, claiming he was shopping with Thermidor because Thermidor owed him money over a card game. While the detective took fingerprints from appellant, none matched anything at the scene of the burglary.

Co-defendant Thermidor confessed to his participation and testified at appellant's trial. In consideration of his confession, the State put him in a pretrial intervention program (PTI).

Thermidor knew appellant from his neighborhood, but he wasn't really a friend—more of an acquaintance. Appellant called him on the day of the crimes, saying he had something to show Thermidor. Appellant eventually showed him the credit card that they used in the stores. Appellant did not tell him from where he got it. It was Thermidor's idea for them to go shopping with the card. Thermidor's friend, John, went with them. Appellant gave Thermidor the card to use at the registers, and Thermidor purchased items, some of which were handed to him by appellant.

The State played the surveillance videos to the jury. Thermidor identified himself and appellant in the video. In it, Thermidor is seen handing the credit card to the cashier while both appellant and Thermidor's friend stand by holding merchandise.

On cross-examination, Thermidor admitted he entered PTI and confessed to his crimes with the hopes his charges would be dropped. He paid restitution to American Express. He admitted that in his sworn PTI statement, he confessed he used the stolen card, but he did not mention appellant's involvement. Thermidor conceded that, as part of PTI, he was required to cooperate with the State regarding appellant's prosecution and to testify against appellant.

After additional evidence from an American Express representative was presented, the State rested. The court denied appellant's motion for judgment of acquittal. He presented no witnesses. At the charge conference, appellant requested a "mere presence" instruction, informing the jury that mere presence at the crime scene is insufficient to prove participation. The court denied the appellant's request, but it ruled that appellant could make that argument during closing. The court ruled that it would read the standard instruction on principal liability, which provides:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he] [she] had done all the things the other person or persons did if:

1. the defendant had a conscious intent that the criminal act be done and

2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually [commit] [attempt to commit] the crime.

To be a principal, the defendant does not have to be present when the crime is [committed] [or] [attempted].

Fla. Std. Jury Instr. (Crim.) 3.5(a).

The prosecutor commenced her closing argument, telling the jury that, "we're all here because [appellant] refuses to take responsibility for his own actions on May 7, 2015. That's why we are here." She contrasted appellant to Thermidor, who "did take responsibility for his actions on that day" and testified against appellant. She repeated this theme multiple times throughout the closing argument.

As the prosecutor discussed Thermidor's recitation of events, she told the jury that in Thermidor's statement to the detective, he confessed and said, "I knew what I did was wrong, but I got the card from [appellant]." Defense counsel objected that those facts were not in evidence, as the court had disallowed the detective to testify regarding Thermidor's confession to the detective. The court overruled the objection.

During the defense's closing argument, counsel consistently attacked Thermidor and the unreliability of his testimony. He argued that the videos only showed "mere presence" of appellant, which was insufficient to show participation without Thermidor's testimony, stating:

there is no evidence to prove that [appellant] participated in this theft; this theft and this fraud that Mr. Thermidor admitted to you and has confessed to I don't know how many times now.

That leaves us with [appellant's] mere presence at the store. The law in Florida says mere presence, even mere knowledge, but mere presence without any participation is not enough to commit .

So if mere presence is not enough, that leaves you with what? The only witness that mattered in this case, Claudell Thermidor. Every word that man spoke yesterday was covered in reasonable doubt. I think you could ask that guy what time it is and he would equivocate and would not be sure. Even simple questions from the State he wasn't sure about.

(emphasis added). Later, he reiterated that, "Mere presence is not enough. Mere knowledge isn't even enough. The only evidence or testimony that [appellant] knew what Mr. Thermidor was doing that day came from Mr. Thermidor, not a reliable source."

In rebuttal, the prosecutor argued that the court would not instruct that mere presence was insufficient. Her comments suggested that the defense was not accurate in his explanation of the law.

Let's talk about what defense counsel said about the principal theory again. I will show it to you one more time. You will not see anywhere in any of your jury instructions that mere presence at the scene of a crime is not enough. What you are going to see is that the person who is being charged as a principal does not even have to be at the scene of a crime to be a principal . I will show it to you again.

(emphasis added). Defense counsel objected, but the trial court allowed the prosecutor to continue, and she again told the jury that presence was sufficient:

This what you will have with you when you go back into the jury room. To be a principal the defendant does not have to be present when the crime is committed.

We can even do one better than that. He was at the scene of the crime when it was committed. It's on the video and everyone saw it.

Ladies and gentlemen, use your common sense. I'm asking you to bring your common sense back there with you. [Appellant] was in on it.

(emphasis added). After rebuttal, defense counsel contended he correctly stated the law and that the prosecutor's argument suggested that he had misstated the law. Appellant again requested a special instruction that mere presence is not enough, but the court denied the request.

The jury convicted appellant of the lesser-included offense of petit theft. This appeal follows.

Appellant argues that the court erred in allowing the prosecutor's argument regarding the defense's contention that "mere presence" was insufficient to prove participation. He contends the State's argument improperly suggested to the jury that defense counsel was misrepresenting the law, and the court erred in refusing to give the special jury instruction on mere presence once the prosecutor had misled the jury on the issue. We agree.

"While wide latitude is permitted in closing argument, see Breedlove v. State , 413 So.2d 1, 8 (Fla. 1982), this latitude does not extend to permit improper argument." Gore v. State , 719 So.2d 1197, 1202 (Fla. 1998). Misleading a jury on the law constitutes improper argument. See Evans v. State , 177 So.3d 1219, 1234–35 (Fla. 2015). We have repeatedly held that, "[m]ere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation." T.W. v. State , 98 So.3d 238, 242 (Fla. 4th DCA 2012) (alteration in original) (quoting Theophile v. State , 78 So.3d 574, 578 (Fla. 4th DCA 20...