Lewis v. State, No. 3D98-2039

Decision Date24 January 2001
Docket Number No. 3D98-2039, No. 3D98-2160.
Citation780 So.2d 125
PartiesEddie LEWIS, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Maria E. Lauredo and Robert Kalter, Assistant Public Defenders, for appellant.

Robert A. Butterworth, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.




After a second jury trial,1 Eddie Lewis (defendant), age sixteen at the time of the offenses, was convicted of felony murder, robbery and attempted robbery, all with a firearm. The evidence presented included an eyewitness identification by the uninjured robbery victim, Noel McPhee, and a post-arrest confession made two weeks after the incident.

Defendant has moved for rehearing en banc asserting that this Court's panel opinion condones the prosecutor's improper closing arguments, which attacked defense counsel's integrity, implied he suborned perjury, bolstered the credibility of state witnesses and appealed to the jury's sympathy.2


Noel McPhee, a former Bahamian police officer, left a nightclub at 2:30 a.m. and went to his car in the corner of the parking lot. As he tried to start the car, he heard a man say, "pass me your jewelry." McPhee looked up and saw the robber, who held a black firearm and appeared nervous. The man told him not to look at him and McPhee looked away through his passenger window, back toward the club. McPhee saw Bertram Williams standing approximately seventy-two feet away by the club's back door, speaking with another individual. The robber told McPhee not to look in that direction. The robber instructed McPhee to quickly remove his jewelry or he would shoot him. McPhee handed over his necklace and the robber continued to rush him about his bracelet. McPhee testified that he was able to see the perpetrator's face. As he was removing his bracelet, he heard a gunshot. He looked back and saw that Williams had been shot. The shooter, who was wearing a mask, ran from the parking lot and fired a second shot into the air. The man who robbed McPhee said, "let's go," and he, the shooter, and a third person got into a white vehicle and left.

McPhee described his assailant to police at the scene as a light-skinned black male in his early twenties, approximately six feet or six feet and one inch and weighing 200-210 pounds.3 He went to the station and chose defendant's picture from a photo album as the man who "looked like" the person who robbed him. When asked whether he was certain about the identification, he responded that he was sure. At trial, McPhee again identified defendant and testified that he was sure of his identification.

Officer Villaverde testified that he learned that Williams had an altercation with three men, one of whom had an extensive record, at the club around 8:00 p.m. on the night of the murder. These men were linked to a white four-door vehicle such as the one seen by McPhee. Although the police knew their identities, Villaverde did not include pictures of them in the albums shown to McPhee. Villaverde also testified regarding defendant's interrogation, which led to his confession.

According to defendant's statement, he was riding in a white car driven by another juvenile named Chrissy, along with one of Chrissy's friends. Chrissy told defendant that he and his friend were "fixing to go on a caper." Defendant understood this meant they intended to rob someone. Chrissy drove to the club parking lot and told defendant to get out of the car. Defendant argued that he did not want to go and Chrissy called him names. Defendant then followed Chrissy, who was wearing a black mask at the time. Chrissy told defendant to rob one man while he robbed another.

Defendant further stated in his confession that he approached a man, asked for his jewelry and told him to be quiet because he did not want to hurt him. The man gave defendant a necklace and a bracelet. Defendant saw Chrissy arguing with the person he was attempting to rob. Chrissy demanded the person's jewelry and threatened him with a .380 or 9mm gun (both semi-automatic firearms). The victim refused and Chrissy "then crazy shot him." Chrissy fired another shot in the air. Defendant yelled, "come on," and the juveniles drove away.

At trial, defendant denied committing the robbery. He testified that his false confession was the product of coercion and based upon facts related to him during his interrogation by the police, including the fact that the victim was shot with a .380 or a 9mm semiautomatic gun.4 Defendant testified that the police threatened that he would never see his parents again; that he would be prosecuted in juvenile court in return for the statement; and that they were there to protect his rights.

The state's case rested on McPhee's identification and the defendant's confession. The defense argued that McPhee's description of his assailant was so dramatically inconsistent with defendant's physical appearance that his subsequent identification was unreliable. As concerns the confession, the defense asserted that it was not voluntarily given and should therefore be disregarded.5 To bolster the lack of voluntariness argument, the defense highlighted three critical facts. First, contrary to police testimony, no effort had been made to contact defendant's parents prior to the interrogation.6 Second, the defendant's claim that the police had told him what to say in his confession was corroborated by the fact that, contrary to defendant's confession, the murder had not been committed with either a .380 or 9mm firearm.7 Finally, the defense argued that Detective Villaverde had misled defendant into believing that Detective Barnabe, the "juvenile officer," was there to look after defendant's best interest.8


In his motion for rehearing en banc, defendant directs his arguments solely at the prosecutor's improper arguments during summation. We, therefore, address only this issue.

The state argues that because defendant did not object to all of the objectionable comments, the issue has not been properly preserved for appellate review. Although the preserved errors in closing, alone, may seem insufficient to require reversal, we conclude that the Florida Supreme Court's decision in Ruiz v. State, 743 So.2d 1 (Fla.1999), allows review of all comments made by the prosecutor during summation. In Ruiz, the Court stated:

The State argues that because defense counsel failed to object to several of the prosecutor's guilt and penalty phase statements he is barred from raising this issue on appeal. We disagree. When properly preserved comments are combined with additional acts of prosecutorial overreaching set forth below, we find that the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted.

Id. at 7. See also Rivero v. State, 752 So.2d 1244 (Fla. 3d DCA 2000)


The first two comments that drew objections concerned attacks on defense counsel based on his cross of McPhee:

Do you recall the abuse and ridicule piled on him by Defense counsel on cross-examination?
. . . .
I thought we were in a rape case and I had a woman up here who had been raped.

The prosecutor was ordered to rephrase the first question and the jury was instructed to disregard the second remark. Both of these comments concerned extensive questioning about the fact that McPhee left the Bahamian police department years before under questionable circumstances, which led the witness to proclaim, "I am not on trial."

The last two comments that were preserved related to improper appeals to sympathy:

[A] man has lost his life because of this caper someone is not going to be a father

The defendant objected to this statement and the trial court correctly sustained the objection. Undeterred by the court's ruling, the prosecutor continued with the same improper argument:

Someone is not going to grow old and enjoy—

The defendant repeated his objection, which the court, inexplicably, overruled. The prosecutor proceeded to finish his thought:

[A]nd enjoy the everyday things that you and I take for granted because of this caper.

In rebuttal, just after telling the jury that sympathy could have nothing to do with their verdict, the prosecutor made two additional, un-objected to appeals to sympathy:

You can't be sympathetic to the victim, Bertram Williams, or his family, because he is dead.
. . . .
Bertram Williams died. And that person is going to be dead forever. We can't say don't worry, we understand, just don't let it happen again. That's not what human life means.

Such appeals to sympathy by the prosecution have been held to be improper. See King v. State, 623 So.2d 486, 488 (Fla. 1993)

; Garron v. State, 528 So.2d 353, 359 (Fla.1988)("When comments in closing argument are intended to and do inject elements of emotion and fear into the jury's deliberations, a prosecutor has ventured far outside the scope of proper argument."); Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985)("The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.").

None of the more egregious comments in this case were objected to below. The prosecutor made several attacks on defense counsel's integrity and implied that he suborned perjury:

If he could walk polka dotted pink elephants into this courtroom, he would do it ... [defense counsel] is a highly skilled attorney with razor sharp skills.
. . . .
Also, did [the defend

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