Jackson v. State, 81-1729

• Decision Date: 05 October 1982
• Docket Number: No. 81-1729,81-1729
• Citation: 421 So.2d 15
• Parties: Mark JACKSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 15

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.¹Adams v. State192 So.2d 762(Fla.1966);Carter v. State, 356 So.2d 67(Fla. 1st DCA1978);Reed v. State, 333 So.2d 524(Fla. 1st DCA1976);seePeterson v. State, 376 So.2d 1230, 1233(Fla. 4th DCA1979).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 seeHarper v. State, 411 So.2d 235, 236-37(Fla. 3d DCA1982);Peterson v. State, supra, 376 So.2d at 1233 n. 2;Price v. State, 267 So.2d 39, 40 n. 1(Fla. 4th DCA1972), or, in the case of the "used car salesman" remark which was the worst of all, actually overruled the objection.²In 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 DCA1981), 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 DCA1982);Gomez v. State, 415 So.2d 822(Fla. 3d DCA1982);Harris v. State, 414 So.2d 557(Fla. 3d DCA1982);Kindell v. State, 413 So.2d 1283(Fla. 3d DCA1982);Harper v. State, supra;McMillian v. State, 409 So.2d 197(Fla. 3d DCA1982);Ruiz v. State, supra;Porter v. State, 386 So.2d 1209, 1213-14(Fla. 3d DCA1980);Glassman v. State, 377 So.2d 208(Fla. 3d DCA1979).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.⁴Since 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 numerous decisions of our supreme court, e.g., Grant v. State, 194 So.2d 612(Fla.1967);Adams v. State, supra;Pait v. State, 112 So.2d 380(Fla.1959), has also proven unavailing, we are compelled to point out that prosecutors are also members of the Bar, bound by the same rules ⁶ and the same disciplinary process which apply to all lawyers.Accordingly, we serve notice that in each instance of prosecutorial misconduct which comes to our attention this court shall determine if it is appropriate to invoke the relevant procedures of the Florida Bar, whether by simply calling the matter to its attention for further investigation, see Fla. Bar Integr.Rule, art. XI, Rule 11.14(9), or by ourselves requiring the direct filing of a motion in the circuit court to discipline the attorney in question.Fla. Bar Integr.Rule, art. XI, Rule 11.14(1).

Because of the prosecutor's prejudicial misconduct, the judgment below is

Reversed and remanded for a new trial.⁷

1At the commencement of the assistant state attorney's rebuttal argument the following occurred:

MR. MANN: Ladies and gentlemen of the jury, there are only four words missing from Mr. Smoley's unbelievable summation.There are only four words missing: Once upon a time.

He is telling you a story.He even said, 'Even if I said I was a State Attorney to Loula.'

Would you buy a used car from this guy, ladies and gentlemen of the jury?

MR. SMOLEY: I object, Your Honor, and move to strike that statement as to pointing out to the jury whether they would buy a used car from me.

THE COURT: Folks, objection overruled.Sit down.Continue.[e.s.]

Later, in another example of this approach, the prosecutor called the lawyer a "cheap shot artist."The trial court responded to an immediate objection by stating only, "Your objection is noted.Comment on the evidence, please."

2Id.

3Not the one involved in this case.

4This may be--although we are loath even to consider the possibility--because some prosecutors believe that keeping a convicted defendant in prison during the sometimes lengthy appellate process is enough to chalk up a "win" even if the conviction is later reversed.

5Fla.Bar Code Prof.Resp.:

EC 7-13 The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.The special duty exists because: (1)the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts.With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution's case or aid the accused.

6...