Henry v. State, 93-3673
| Decision Date | 15 March 1995 |
| Docket Number | No. 93-3673,93-3673 |
| Citation | 651 So.2d 1267 |
| Parties | 20 Fla. L. Weekly D665 Oral HENRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and David McPherrin, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ettie Feistmann, Asst. Atty. Gen., West Palm Beach, for appellee.
During closing argument in this prosecution for delivery of cocaine, the prosecutor argued that somebody "got to" one of the defense alibi witnesses, without any evidence whatsoever of any improper contact with the witness. Because this comment implies tampering with a witness and the suborning of perjury by the defense, we hold that it was error warranting a new trial.
The appellant was charged with delivery of cocaine to an undercover officer. The officer made a positive identification of the appellant. However, appellant put on an alibi defense, contending that he was with a friend and his girlfriend, fixing his car on the night of the incident. When the girlfriend testified, she was impeached by her deposition as to certain facts she testified to at trial. In general she was a great deal more vague at trial about the time sequence involved than she was during her deposition, and those discrepancies were brought out on cross-examination. During closing argument, the prosecutor argued that The trial court overruled the appellant's objection that the statement lacked evidentiary support.
On appeal, the state argued that the prosecutor's comment was a conclusion that could be drawn from the fact that the witness was impeached with prior inconsistent statements. The fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change her story. The implication by the prosecutor in this case was that the defense "got to" the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial. See Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984), rev. denied, 456 So.2d 1182 (Fla.1984). We strongly disapprove of the prosecutor's making comments which impugn the defense without any basis. We cannot deem the comment harmless, as it may have affected the weight that the jury ascribed to the testimony of appellant's alibi witnesses. We therefore must reverse for a new trial.
Appellant also contends that his statement to the officers at...
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Thornton v. State
...prosecutor comment that a defense witness and the defendant "got together and `contrived and concocted' their story"); Henry v. State, 651 So.2d 1267 (Fla. 4th DCA 1995)(prosecutor's argument that somebody "got to" one of the defense alibi witnesses, without any evidence of any improper con......
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Penalver v. State
...or that a witness has not testified out of fear. See Johnson v. State, 747 So.2d 436, 439 (Fla. 4th DCA 1999); Henry v. State, 651 So.2d 1267, 1268-69 (Fla. 4th DCA 1995). In this case, there was no evidentiary support for the prosecutor's comment that Wilsure failed to testify out of fear ......
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Johnson v. State
...v. State, 712 So.2d 1216, 1217 (Fla. 3d DCA 1998); see also Tran v. State, 655 So.2d 141 (Fla. 4th DCA 1995); Henry v. State, 651 So.2d 1267, 1268-69 (Fla. 4th DCA 1995). Although wide latitude is permitted in closing argument, see Breedlove v. State, 413 So.2d 1, 8 (Fla.1982), this latitud......
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Penalver v. State, No. SC00-1602 (FL 2/2/2006)
...or that a witness has not testified out of fear. See Johnson v. State, 747 So. 2d 436, 439 (Fla. 4th DCA 1999); Henry v. State, 651 So. 2d 1267, 1268-69 (Fla. 4th DCA 1995). In this case, there was no evidentiary support for the prosecutor's comment that Wilsure failed to testify out of fea......