Grant v. State

Decision Date01 February 1967
Docket NumberNo. 34711,34711
Citation194 So.2d 612
PartiesAlfreddie GRANT, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida Supreme Court

W. A. Drury, Jasper, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

DREW, Justice.

On this appeal from a verdict of guilt without a recommendation of mercy and a judgment sentencing appellant to death, we find reversible error to have occurred when, in his closing argument to the jury, the state's attorney said: 'Do you want to give this man less than first degree murder and the electric chair and have him get out and come back and kill somebody else, maybe you?' 1

Inasmuch as this cause must be reversed and remanded for a new trial, it is unnecessary for us to discuss or decide the other points presented for our consideration. 2

In Washington v. State (1923), 86 Fla. 533, 542-543, 98 So. 605, 609, this Court, speaking through the late Mr. Justice Terrell, very appropriately observed:

'* * * The prosecuting attorney occupies a semijudicial position. He is a sworn officer of the government, with no greater duty imposed on him than to preserve intact all the great sanctions and traditions of the law. It matters not how guilty a defendant in his opinion may be, it is his duty under oath to see that no conviction takes place except in strict conformity to law. His primary considerations should be to develop the facts and the evidence for the guidance of the court and jury, and not to consider himself merely as attorney of record for the state, struggling for a verdict. * * *

'Any attempt to pervert or misstate the evidence or to influence the jury by the statement of facts or conditions not supported by the evidence should be rebuked by the trial court, and, if by such misconduct a verdict was influenced, a new trial should be granted.'

In Stewart v. State (Fla.1951), 51 So.2d 494, Mr. Justice Terrell, in discussing the prejudicial nature of the following remarks made by a state's attorney, viz: "The time to stop a sexual fiend and maniac is in the beginning and not to wait until after some poor little child or some little girl lost her life * * * or mutilated" said:

'This Court has so many times condemned pronouncements of this character in the prosecution of criminal cases that the law against it would seem to be so commonplace that any layman would be familiar with and observe it. We have not only held that it is the duty of counsel to refrain from inflammatory and abusive argument but that it is the duty of the trial court on his own motion to restrain and rebuke counsel from indulging in such argument. The pronouncement complained of was a pure gratuity without any basis in the record for it. The Supreme Court of the United States and the Courts of last resort throughout the country have condemned this kind of prosecution. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629-633, 79 L.Ed. 1314, decided April 15, 1935; Smith v. State, 147 Fla. 191, 3 So.2d 516; Smith v. State, 101 Fla. 1066, 132 So. 840; Oglesby v. State, 156 Fla. 481, 23 So.2d 558; Deas v. State, 119 Fla. 839, 161 So. 729; Livingston v. State, 140 Fla. 749, 192 So. 327 and many others.'

A very similar situation was dealt with by us in Singer v. State, note 1 supra, 109 So.2d at page 27. There the state's attorney told the jury:

"* * * What am I thinking? Mercy is granted. You become soft, you become sympathetic. He is sent to the penitentiary. What am I going to think? What is my family going to think? What are these back here going to think? What am I going to think?

"I have been your prosecutor for almost 19 years, and for three years prior to that I had the privilege and the honor of the same position that Osee had. Are you by your verdict, gentlemen, going to say to the prosecutors in this Nation that they have no protection for performing their duty? There's only one sure way$ That penitentiary is not absolute inviolate. A life sentence doesn't mean a life sentence. It isn't literal.'

'Defense counsel objected to the italicized portion of the above copied statement. His objection was sustained and the jury instructed to disregard the statement.

'The State Attorney continued:

"Gentlemen, I say to you again the penitentiary at Raiford is not inviolate."

And, again, in Pait v. State, note 1 supra, 112 So.2d at pages 383-384, the questioned remarks were:

"The state of Florida also provides this defendant with the only right of appeal. The People of the State have no right to appeal. This is the last time the People of this State will try this case in this court. Because whatever you do, the People have no right of appeal. They are done. This is their day. But he may have another day; he has an appeal. So those are the rights that the State of Florida gives to him, that intangible object.'

'Following close on the above quoted remarks, the State Attorney then went on to advise the jury as follows:

"Before each murder trial that is prosecuted in this circuit, where I'm the State Attorney, a conference is held between me and my assistants to determine whether or not the facts in the case justify the State's giving maximum punishment under the law.

"I told you at the outset of this trial that if the facts in this case warranted this defendant being sent to the electric chair * * *."

In the Singer and Pait cases we were concerned with the prejudicial nature of the quoted remarks when considered in the light of the possible effect of such remarks on a recommendation of mercy by the jury. In each instance we reversed and held such remarks were unwarranted, prejudicial and could well have been the reason why the penalty in those cases was death instead of life imprisonment--assuredly a major difference so far as the defendant is concerned. We emphasized in both cases the requirement of the law that every defendant has the right to have the question of mercy determined in a fair and impartial manner, free from prejudicial and inflammatory statements.

The remarks of the state's attorney in this case were clearly and obviously made for the purpose of influencing the jury to impose the death penalty. There is no conceivable basis in the record upon which such remarks could be predicated. They were highly prejudicial and inflammatory for they conveyed to the jury the thought--and the suggestion--that if they did not impose the death penalty this defendant would probably escape or be pardoned and come back to the community and kill them, the jury. 3 Paraphrased, the remarks were 'If you do not electrocute this defendant, this man may come back here and kill all of you.' Such remarks were infinitely more prejudicial than those in any of the cases cited and were assuredly of the character that this Court condemned in Washington v. State, supra, and that other courts have universally condemned when presented on review. 4

In the State's brief on this question, it seems to take the position that this Court in the recent case of Collins v. State (Fla.1965), 180 So.2d 340, 343, receded from the cases discussed herein which we hold require a reversal of this judgment. No such conclusion is warranted for the very reasons stated in that opinion. There we specifically said:

'We do not recede from any of our prior pronouncements upon the duty of prosecutors to stay within the realm of proper argument. And needless to say, if the question here had been completed 'in an improper manner,' we would, by definition, declare the question 'impr...

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33 cases
  • Herzog v. State
    • United States
    • Florida Supreme Court
    • September 22, 1983
    ..."so prejudicial to the rights of an accused that neither rebuke nor retraction could eradicate its evil influence." Grant v. State, 194 So.2d 612, 613 n. 1 (Fla.1967). Hence, the failure of the defendant to object to the alleged prejudicial comments is fatal and subsequent review by this Co......
  • DeLaine v. State
    • United States
    • Florida District Court of Appeals
    • January 9, 1970
    ...the Court could reasonably conclude the accused was deprived of a fair trial. See Adams v. State, Fla.1966, 192 So.2d 762; Grant v. State, Fla.1967, 194 So.2d 612; Gluck v. State, Fla.1953, 62 So.2d 71; Stewart v. State, Fla.1951, 51 So.2d 494; Oglesby v. State, 1945, 156 Fla. 481, 23 So.2d......
  • Teffeteller v. State
    • United States
    • Florida Supreme Court
    • August 25, 1983
    ...who testified against him, and maybe others. There is no place in our system of jurisprudence for this argument. See Grant v. State, 194 So.2d 612 (Fla.1967); Singer v. State, 109 So.2d 7 (Fla.1959); Williams v. State, 68 So.2d 583 (Fla.1953); Stewart v. State, 51 So.2d 494 (Fla.1951); Sims......
  • Lewis v. State, 49668
    • United States
    • Florida Supreme Court
    • November 1, 1979
    ...request that the jury consider whether they, or others, would be the defendant's next victims if they failed to convict him. Grant v. State, 194 So.2d 612 (Fla.1967); Stewart v. State, 51 So.2d 494 (Fla.1951). Clearly, such a statement would be irrelevant to the innocence or guilt of the ac......
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