Gomez v. State, 98-2180.

Citation751 So.2d 630
Decision Date15 December 1999
Docket NumberNo. 98-2180.,98-2180.
PartiesRoberto A. GOMEZ, Appellant, v. The STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Spencer & Klein, David M. Tarlow and Edelberto Farres, Miami, for appellant.

Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

Before NESBITT, JORGENSON, and SHEVIN, JJ.

On Rehearing Granted

NESBITT, J.

Roberto A. Gomez appeals his conviction of attempted second-degree murder based upon numerous improper and prejudicial comments made by the prosecutor during his trial. We agree with Gomez both that the comments were improper and that they constituted fundamental error. Therefore, we vacate Gomez's conviction and remand for a new trial.

Gomez was charged with attempted murder following an altercation with another man which resulted in Gomez's stabbing the man in the back with a knife. Gomez claimed self-defense, asserting that the purported victim had escalated their argument by pulling a knife on Gomez, whereupon Gomez stabbed the victim to avoid being stabbed himself. Gomez testified to this in his own defense at trial. The prosecutor, Laura Stuzin, both on cross-examination of Gomez and during closing argument, made many improper comments which, in our view, were so prejudicial that they deprived Gomez of a fair trial.

Sixteen separate comments were challenged by Gomez. We will discuss the most egregious of them. First, the prosecutor specifically called Gomez, who had testified, a liar, and referred to his version of events as "lies" and as a "cockamamie story." She also said: "The Defendant is a big zero, he has no credibility whatsoever." Next, during her cross-examination of Gomez, the prosecutor inferred, without foundation, that Gomez was a gang leader, that he had "deal[t] with guns often," and that the altercation between Gomez and the victim had sprung from Gomez's attempt to sell the victim a "stolen" watch. Finally, the prosecutor made "golden rule" arguments during closing, improperly suggesting to the jury that if they placed themselves in the shoes of the defendant, they would not have stabbed the victim in reaction to the circumstances the defendant had faced, and suggesting that if this was really a case of self-defense, that the jurors in Gomez's place would have acted differently.

All of the above comments were improper. It is most troubling to this Court that, especially in an instance where the defendant takes the stand in his own defense, the prosecutor here referred to the defendant as a "liar" and to his version of events as "lies." With these types of comments, the prosecutor encroached on the jury's job by improperly weighing in with her own opinion of the credibility of the witnesses. This impropriety was compounded by the prosecutor's other misconduct—the "golden rule" arguments and the unfounded questions concerning gang membership and familiarity with guns. As we and other Florida Courts have held in the past, these types of improper comments by "overzealous" (read "unprofessional")1 prosecutors are unfair to defendants, will not be tolerated, and will continue to result in reversals. See, e.g., Gore v. State, 719 So.2d 1197, 1200-01 (Fla.1998)

(prosecutor introduced unsupported collateral crime evidence and repeatedly called the defendant a liar); Izquierdo v. State, 724 So.2d 124 (Fla. 3d DCA 1998) (prosecutor engaged in namecalling of the defendant, referred to the defense as a "pathetic fantasy," and repeatedly used improper golden rule arguments); Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994) (prosecutor repeatedly called the defendant a chronic liar, introduced facts not in evidence, urged the jury it was their duty to convict, referred to defendant in pejorative terms). We also note that this same prosecutor, Laura Stuzin, was recently admonished for similar improper comments during trial in Walker v. State, 710 So.2d 1029 (Fla. 3d DCA 1998),2 which resulted in this Court's reversal of that defendant's conviction.

It is not solely the prosecutor who must be admonished here. The trial court retains the ultimate responsibility for the proper conduct of...

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    • May 21, 2003
    ...be no elimination of such conduct." Murphy v. Murphy, 622 So.2d 99, 102(Fla. 2d DCA 1993). As this Court stated in Gomez v. State, 751 So.2d 630, 632-33 (Fla. 3d DCA 1999): There comes a point and time in the conduct of a trial that the trial judge should and must intervene in the egregious......
  • Zack v. State
    • United States
    • Florida Supreme Court
    • September 16, 2005
    ...the jury's job by improperly weighing in with his or her own opinion of the credibility of the witnesses. See, e.g., Gomez v. State, 751 So.2d 630, 632 (Fla. 3d DCA 1999). However, courts have held that where such commentary is supported by the evidence, there will be no reversal. See, e.g.......
  • Zack v. Crosby, No. SC04-201 (FL 7/7/2005), SC04-201.
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    • July 7, 2005
    ...the jury's job by improperly weighing in with his or her own opinion of the credibility of the witnesses. See, e.g., Gomez v. State, 751 So. 2d 630, 632 (Fla. 3d DCA 1999). However, courts have held that where such commentary is supported by the evidence, there will be no reversal. See, e.g......
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    • September 2, 2016
    ...(2008).18 See, Wend v. People , 235 P.3d 1089 (Colo. 2010) ; State v. Hilton , 79 Conn.App. 155, 829 A.2d 890 (2003) ; Gomez v. State , 751 So.2d 630 (Fla. App. 1999) ; State v. Graves, supra note 14 ; Haddock v. State , 282 Kan. 475, 146 P.3d 187 (2006) ; State v. Campbell, supra note 15.1......
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