Harris v. State, No. 80-2213

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation414 So.2d 557
PartiesElvis HARRIS, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 80-2213
Decision Date27 April 1982

Page 557

414 So.2d 557
Elvis HARRIS, Appellant,
v.
The STATE of Florida, Appellee.
No. 80-2213.
District Court of Appeal of Florida,
Third District.
April 27, 1982.
Rehearing Denied June 18, 1982.

Bennett H. Brummer, Public Defender and Sharon B. Jacobs and Judith A. Bass, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen., for appellee.

Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.

PER CURIAM.

Prosecutorial misconduct deprived appellant of his fundamental right to a fair trial, requiring that we set aside his conviction on two counts of robbery and a separate count of possession of a firearm and grant appellant a new trial on all counts.

Count I charged appellant with robbery with a firearm, committed on May 14, 1980. Count II charged him with possession of a firearm while engaged in a criminal offense on the same date. Count III charged him with robbery with a firearm, committed on May 20, 1980. Both robberies occurred at the South Miami Dry Cleaners and Laundromat and involved the same victim. The prosecutor, in his opening statement to the jury, said, "Keep in mind the fact that between the days of the 14th and the 20th there was the 17th of May when the riots began here in Miami." Defense counsel's objection was sustained, his motion for mistrial was denied, and the court instructed the jury to disregard the statement.

Page 558

Appellant was identified by the victim as having participated in both robberies. The state offered no other identification testimony. Appellant testified, denying that he had been in the laundromat on either date. Against this conflicting testimony as to identity of the robber, the respective credibility of which we do not attempt to weigh, the prosecutor in closing argument to the jury (1) expressed thanks to the jury on behalf of the victim, (2) referred to crime on the rampage in the community, (3) referred to the victim's tearful breakdown on the witness stand and implied that such was due to tactics of defense counsel, and (4) expressed his personal belief in the guilt of appellant as to both robberies. Defendant's several motions for mistrial and his post-trial motion for new trial were severally denied.

It is the responsibility of the prosecutor to seek justice, not merely to convict. That responsibility will be more nearly met when the jury is permitted to reach a verdict on the merits without counsel indulging in appeals to sympathy, bias, passion or prejudice. Prosecutors should give careful heed to the admonitions and restraints set forth in the numerous time-honored cases cited and discussed by Mr. Justice Drew in Grant v....

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17 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Riley v. State, 560 So.2d 279, 280 (Fla. 3d DCA 1990); Jones v. State, 449 So.2d 313, 314-315 (Fla. 5th DCA 1984); Harris v. State, 414 So.2d 557, 558 (Fla. 3d DCA 1982); Buckhann v. State, 356 So.2d 1327, 1328 (Fla. 4th DCA 1978); Reed v. State, 333 So.2d 524, 525 (Fla. 1st DCA 1976); Pric......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Riley v. State, 560 So.2d 279, 280 (Fla. 3d DCA 1990); Jones v. State, 449 So.2d 313, 314-315 (Fla. 5th DCA 1984); Harris v. State, 414 So.2d 557, 558 (Fla. 3d DCA 1982); Buckhann v. State, 356 So.2d 1327, 1328 (Fla. 4th DCA 1978); Reed v. State, 333 So.2d 524, 525 (Fla. 1st DCA 1976); Pric......
  • Thornton v. State, No. 3D02-1330.
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 2003
    ...district. E.g., Chapman v. State, 417 So.2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982); Harper v. State, supra, 411 So.2d 852 So.2d 915 235, 236-37 (Fla. 3d......
  • Boatwright v. State, No. 82-2033
    • United States
    • Court of Appeal of Florida (US)
    • July 18, 1984
    ...of the prosecutor must reflect a scrupulous adherence to the highest standards of professional conduct. See also Harris v. State, 414 So.2d 557 (Fla. 3d DCA The prosecutor's argument in the case at bar constitutes a departure from acceptable practice. That it was stated three times and, on ......
  • Request a trial to view additional results
17 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Riley v. State, 560 So.2d 279, 280 (Fla. 3d DCA 1990); Jones v. State, 449 So.2d 313, 314-315 (Fla. 5th DCA 1984); Harris v. State, 414 So.2d 557, 558 (Fla. 3d DCA 1982); Buckhann v. State, 356 So.2d 1327, 1328 (Fla. 4th DCA 1978); Reed v. State, 333 So.2d 524, 525 (Fla. 1st DCA 1976); Pric......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Riley v. State, 560 So.2d 279, 280 (Fla. 3d DCA 1990); Jones v. State, 449 So.2d 313, 314-315 (Fla. 5th DCA 1984); Harris v. State, 414 So.2d 557, 558 (Fla. 3d DCA 1982); Buckhann v. State, 356 So.2d 1327, 1328 (Fla. 4th DCA 1978); Reed v. State, 333 So.2d 524, 525 (Fla. 1st DCA 1976); Pric......
  • Thornton v. State, No. 3D02-1330.
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 2003
    ...district. E.g., Chapman v. State, 417 So.2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982); Harper v. State, supra, 411 So.2d 852 So.2d 915 235, 236-37 (Fla. 3d......
  • Boatwright v. State, No. 82-2033
    • United States
    • Court of Appeal of Florida (US)
    • July 18, 1984
    ...of the prosecutor must reflect a scrupulous adherence to the highest standards of professional conduct. See also Harris v. State, 414 So.2d 557 (Fla. 3d DCA The prosecutor's argument in the case at bar constitutes a departure from acceptable practice. That it was stated three times and, on ......
  • Request a trial to view additional results

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