Murray v. State, 81-1959
| Decision Date | 05 January 1983 |
| Docket Number | No. 81-1959,81-1959 |
| Citation | 425 So.2d 157 |
| Parties | Moses K. MURRAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gary S. Israel, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from an amended judgment of guilty for possession of a firearm by a felon and carrying a concealed weapon. We reverse the part of the amended judgment affecting the first charge and remand for new trial; but we affirm the part dealing with the second charge because we find appellant's argument directed thereto to be meritless.
Appellant was charged in a five-count information for the above crimes as well as aggravated assault, battery and carrying a concealed firearm. The charge of possession of a firearm by a felon was severed from the other charges and tried first to a jury. It is in this initial trial that we perceive the harmful error which compels reversal.
At the conclusion of the evidence, appellant's counsel had preserved his right to sandwich the state's closing argument. We have reviewed the initial argument by appellant's counsel and find it to be temperate. In his discussion of reasonable doubt, he remarked with respect to one witness: "There is a lot of reasonable doubt there as to the credibility of her testimony." While this remark explicitly refers to the witness' credibility, it skirts Florida Bar Code of Professional Responsibility DR 7-106(C)(4) () and is phrased in such a manner--when viewed in the light of his remaining argument--that it plainly should not have goaded the prosecutor into accusatory language. 1
Unfortunately, however, when the prosecutor undertook his closing argument he warmed to the task by asking the jury to consider whether appellant's testimony was worthy of any belief. He then turned up the heat in one final blast:
I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.
This last comment, neither provoked nor justified, was a plain violation of the Code of Professional Responsibility. 2 The criminal justice system cannot function without zealous prosecution, nor with unprofessional advocacy--whether the latter be in the form of indifference on the one hand or intemperate conduct on the other. One cannot successfully prosecute without fire in the belly nor with its misuse.
1 In contrast, see Broge v. State, 288 So.2d 280 (Fla. 4th DCA), cert. denied, 295 So.2d 302 (Fla.), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974), wherein defense counsel's most abusive comments provoked a restrained remark by the prosecutor which was held to be fair rebuttal.
2 See ...
To continue reading
Request your trial
-
Boatwright v. State, 82-2033
...Court of Florida in State v. Murray, 443 So.2d 955 (Fla.1984) and (2) to express some observations as the author of Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), which was subsequently quashed in State v. The suggestions are these: 1. Prosecutors should now, more than ever, realize th......
-
State v. Murray
...Palm Beach, for petitioner. Gary S. Israel, West Palm Beach, for respondent. SHAW, Judge. Petitioner seeks review of Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), because of direct and express conflict with Cobb v. State, 376 So.2d 230 (Fla.1979); Tacoronte v. State, 419 So.2d 789 (Fl......
-
Singletary v. State
...expression of personal beliefs by a prosecutor is improper. See, e.g., O'Callaghan v. State, 429 So.2d 691 (Fla.1983); Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), quashed on other grounds, 443 So.2d 955 (Fla.1984); Florida Bar Code of Professional Responsibility DR7-106(C)(4). A pro......