Jackson v. State, No. 81-1729

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SCHWARTZ
• Citation: 421 So.2d 15
• Decision Date: 05 October 1982
• Docket Number: No. 81-1729
• Parties: Mark JACKSON, Appellant, v. The STATE of Florida, Appellee.

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421 So.2d 15 Mark JACKSON, Appellant,
v.
The STATE of Florida, Appellee. No. 81-1729. District Court of Appeal of Florida,
Third District. Oct. 5, 1982.
Rehearing Denied Nov. 17, 1982.

Bennett H. Brummer, Public Defender and Robert A. Smoley and Jeff Grate, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen. and John F. Robenalt and Penny Hershoff, Asst. Attys. Gen., for appellee.

Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.

SCHWARTZ, Judge.

The prosecutor's personal attacks upon defense counsel during final argument--which reached their apogee (or nadir) when the jurors were asked whether they would buy a used car from him--were, as is now acknowledged by the state, utterly and grossly improper. ¹ Adams v. State,

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192 So.2d 762 (Fla.1966); Carter v. State, 356 So.2d 67 (Fla. 1st DCA 1978); Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); see Peterson v. State, 376 So.2d 1230, 1233 (Fla. 4th DCA 1979). While the prejudicial effect of these remarks might have been dissipated if, as required, the trial judge had emphatically rebuked the state attorney and affirmatively instructed the jury that the comments must be totally disregarded, Deas v. State, 119 Fla. 839, 161 So. 729, 731 (1935), in fact, he either merely told counsel to "comment on the evidence," but see Harper v. State, 411 So.2d 235, 236-37 (Fla. 3d DCA 1982); Peterson v. State, supra, 376 So.2d at 1233 n. 2; Price v. State, 267 So.2d 39, 40 n. 1 (Fla. 4th DCA 1972), or, in the case of the "used car salesman" remark which was the worst of all, actually overruled the objection. ² In these circumstances, we must conclude that the defendant's fundamental right to a fair trial may be upheld only by ordering a new one. Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945); Ruiz v. State, 395 So.2d 566 (Fla. 3d DCA 1981), and cases cited; Carter v. State, supra.

We choose to employ this decision to discuss the broader, very serious problem it exemplifies. For some time, this court has been faced with a veritable torrent of cases which have similarly involved significant prosecutorial improprieties committed by assistant state attorneys in this 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; McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Ruiz v. State, supra; Porter v. State, 386 So.2d 1209, 1213-14 (Fla. 3d DCA 1980); Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979). The volume of these cases--including multiple acts of misconduct by particular prosecutors ³--is so great that we can no longer believe that they represent merely isolated examples of understandable, if inexcusable, overzealousness in the heat of trial. Instead, we must suspect, however reluctantly, that the improprieties may be deliberately calculated to accomplish just what representatives of the state cannot be permitted--inducing a jury to convict by unfairly prejudicing it against the defendant. It is obvious that this pattern of conduct cannot be tolerated. It is just as apparent, and just as distressing, however, that our prior efforts to eliminate the practice have proven entirely inadequate. Cf. United States v. Modica, 663 F.2d 1173 (2d Cir.1981). Strong admonitions, such as those administered in Harris, Harper, and Porter, supra, obviously do no good. Even repeated reversals on the basis of prosecutorial impropriety have apparently not achieved this result. ⁴ Since reliance upon an adherence--enforced either by self-discipline or that of their superiors--to the obligations imposed upon assistant state attorneys by their oaths, special provisions of the Code of Professional Responsibility, ⁵ and

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numerous decisions of our supreme court, e.g., Grant v. State, 194 So.2d 612...