Hightower v. State, 91-488
| Decision Date | 10 December 1991 |
| Docket Number | No. 91-488,91-488 |
| Citation | 592 So.2d 689 |
| Parties | Edward HIGHTOWER, Appellant, v. The STATE of Florida, Appellee. 592 So.2d 689, 16 Fla. L. Week. D3041 |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Marc E. Brandes, Asst. Atty. Gen., for appellee.
Before FERGUSON, LEVY and GERSTEN, JJ.
Defendant appeals his conviction for Aggravated Assault and Battery, claiming that the prosecutor committed fundamental error by improperly attacking the credibility of defense counsel.
Edward Hightower, the defendant below, approached a female victim outside a grocery store, in an apparent attempt to mug her, and struck the victim in the face. When the victim started to strike back, the defendant allegedly pulled a gun from his pants and pointed it at the victim. The defendant admitted hitting the victim, but denied using a firearm. However, the witnesses at trial testified that they saw the defendant point a gun at the victim. The defendant lived four blocks from the crime scene and was not approached by police until twenty minutes after the incident.
During the State's closing argument, the following comment was made by the prosecutor:
Now, Karen Miller is an excellent attorney. She's appointed to represent Edward Hightower. She's the Assistant Public Defender. She doesn't choose her clients and it's her job and she does a good one to confuse witnesses, to try to put words in witnesses' mouths as she did on her cross examination.
The defendant did not object to the State's closing argument, did not ask for a curative instruction, and did not ask for a mistrial.
The defendant was convicted of both Aggravated Assault as to Count I, and Battery as to Count II, and sentenced to three years in prison as to Count I, with a suspended sentence as to Count II. The defendant appeals.
The appellant contends that the prosecutor's comment implied to the jury that defense counsel was only representing the defendant because she had no choice and was forced to. According to the appellant, this improper attack upon the credibility of defense counsel deprived the defendant of a fair trial, thus constituting fundamental error and warranting reversal. Appellant claims that the error was not harmless because this was a very close case concerning the issue of whether or not a gun was used and it was impossible for the State to establish beyond a reasonable doubt that the comment in question did not affect the jury verdict. We disagree. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
The State argues that the defendant failed to properly object to the statement and move for a mistrial and thus, absent a showing of fundamental error, this issue has not been preserved for appellate review. The State further argues that the statements made during closing argument do not constitute fundamental error. We agree.
The statements did not discuss the defendant, witnesses, or the weapon used in the crime, and did not go to the foundation or merits of the cause of action. It is clear that, in the absence of showing of fundamental error, the convictions and sentences entered below must be affirmed in view of the fact that the error was not preserved in the trial court.
We further hold that, even if the claimed error had been properly preserved in the trial court, the judgment and sentence entered in this case would still have to be affirmed. The evidence presented at trial, relating to the appellant's possession of a firearm, was overwhelming and completely uncontradicted and, therefore, clearly supports the conviction and sentence. Any error committed by the prosecutor in the closing statement was harmless. In reaching this conclusion, we note that three of the State's witnesses, the victim, the victim's daughter, and an eyewitness/neighbor, testified that the defendant possessed a firearm at the time he committed a battery on the victim. The defendant did not testify on his own behalf, and the defense rested at the close of the State's case. The following are excerpts of testimony taken from the State's witnesses during the proceedings below.
ON DIRECT TESTIMONY OF SANDRA KING (VICTIM)--
Page 141: Q: What happened?
Page 142: Q: Was his finger on the trigger?
A: Yes, it was on the trigger.
ON DIRECT TESTIMONY OF KENIKA KING (VICTIM'S DAUGHTER)
This witness testified that she accompanied her mother to the grocery store and was present at the time of the assault.
Page 167: Q: Where did he hit her?
Page 168: Q: How did you know it was a gun?
ON DIRECT TESTIMONY OF DOREATHA RICHARDSON (EYEWITNESS/NEIGHBOR)
Page 203: Q: Now, do you know a person by the name of Sandra King?
A: I didn't know her at the time, but I know her now.
Page 205: Q: What about the lighting conditions back then?
Page 207: Q: Did you actually see her strike him?
For all of the foregoing reasons, we find ourselves in the same position that this Court described in Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982) wherein the Court stated, at page 592, .
Affirmed.
Because the prosecutor's inflammatory closing comments set my judicial soul afire, I must respectfully dissent. I would reverse based upon fundamental error.
Appellant, Edward Hightower, appeals his convictions for aggravated assault and battery. Appellant was charged with striking a victim, and then threatening her with a gun.
There were three witnesses against appellant: the victim, the victim's daughter, and the victim's neighbor. The victim testified that she approached appellant and asked him if he was going to mug her, at which time appellant struck her.
The victim testified that after appellant hit her, she hit him with a bottle, and appellant then pointed a gun at her. She told appellant she would be back and left the scene.
Although there was testimony concerning appellant pointing a gun, no gun was recovered, either from the scene, or from appellant. At all times, the appellant admitted the battery but vehemently denied having, or using, a gun.
At trial, the most contested issue revolved around the credibility of the witnesses and appellant. Because there was no physical evidence regarding the gun, appellant's conviction rested on whom the jury believed.
But for the reprehensible and extraneous comments made by the prosecutor during closing, this appeal would have focused on the facts underlying the crimes charged, sufficiency of the evidence, and procedural due process. The prosecutor's improper behavior, however, has shifted the focus of this inquiry solely to his closing argument.
The prosecutor in his closing, went into a paroxysm attacking the public defender:
Now, Karen Miller is an excellent attorney. She's the Assistant Public Defender. She doesn't choose her clients and its her job and she does a good one to confuse witnesses, to try to put words in witnesses' mouths as she did on cross examination.
There was no reason for the prosecutor to draw the jury's attention to the fact that appellant was being represented by a public defender. There was no reason for the prosecutor to attack the credibility of the public defender. There was no reason to make such outrageous comments about the public defender.
The necessary implications flowing from the prosecutor's comments are that public defenders are second rate attorneys who are forced to represent the guilty, and whose job is to confuse the jury. The ultimate inference is that public defenders are unreliable and...
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