Porterfield v. State, BP-438

• Decision Date: 17 March 1988
• Docket Number: No. BP-438,BP-438
• Citation: 13 Fla. L. Weekly 723,522 So.2d 483
• Parties: 13 Fla. L. Weekly 723 Harrison PORTERFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 483

522 So.2d 483

13 Fla. L. Weekly 723

Harrison PORTERFIELD, Appellant, v. STATE of Florida, Appellee.

No. BP-438.

District Court of Appeal of Florida First District.

March 17, 1988.

Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

Harrison Porterfield appeals from a jury verdict finding him guilty of possession and sale of cocaine. Porterfield raises several issues in this appeal; however, because we conclude that the trial court reversibly erred in not granting Porterfield's motion for a mistrial after the State referred to his failure to testify during opening and closing arguments, we find it unnecessary to discuss any of Porterfield's other points of error. We reverse and remand for a new trial.

Porterfield's arrest resulted from an investigation which the Escambia County Sheriff's Department conducted in the spring of 1986. In March 1986, Larry Kersh, an undercover investigator with the Sheriff's Department, established a relationship with Allen Williams and Randall Moton in hopes of procuring cocaine from them. On March 14, 1986, Moton told investigator Kersh, after Kersh had attempted to buy cocaine from him, that although he didn't have any cocaine, he knew someone who did. Kersh, Moton, and another investigator, Wendell Hall, then met with Allen Williams. Williams, like Moton, had no cocaine, but said he knew where to find some. Kersh, Moton, Williams, and Hall drove to Porterfield's home, and after arriving there, Williams got out of the car and began to walk toward Porterfield's house. At the same time, Porterfield approached the car in which Williams had arrived, and the two met halfway in Porterfield's yard. After Williams and Porterfield talked for three or four minutes, Williams, Porterfield, and Kersh decided to take Porterfield's car in search of some cocaine. Porterfield evidently insisted that Hall not be permitted to accompany Kersh. Consequently, Hall and Moton waited in Porterfield's yard for the others to return.

Porterfield, Williams, and Kersh eventually drove to a house on Fowler Avenue in Escambia County. Porterfield went unaccompanied to the house and returned without drugs. The three men then drove to an apartment complex in front of which Porterfield parked his car. Porterfield left the car and walked alone to another apartment building. Within five minutes, he returned with a small bag the contents of which later proved to be cocaine. The State filed charges against Porterfield on counts of possession and sale of cocaine.

The issues in this case emanate from Porterfield's decision to represent himself at trial. Before his trial began, Porterfield signed a waiver of counsel form and proceeded to trial pro se. The trial judge, however, instructed Elton Killam, the public defender assigned to represent Porterfield, to remain at Porterfield's side throughout the trial. During his opening remarks to the jury, the State Attorney observed:

So, one other thing, one last thing I want to remind you in this opening statement, keep in mind is what I'm telling you is what I expect the evidence to be. If I make a mistake and it doesn't turn out that way, you'll have to decide the case on what the evidence was, not what I say. At the same time, if I say something wrong myself and I'm wrong about it, if you hear it differently from the witness stand, don't think it's questionable coming from the witness stand just because I said it wrong. I'm not a witness to the case. I'm just the prosecutor. And one last thing I would like to ask you to remember is that we have certain rules of court that, of course, I've been trained in and experienced in for ten years and I'm used to following those rules. And I know that Mr. Porterfield is not an attorney. He's not a trained attorney. And I just ask you to keep in mind if I hold him to rules, I'm not picking on him. It's just that it's kind of automatic with me. I know these rules and I will object if he violates the rules of the court. And it's not because I want to put him at a disadvantage. In fact, I think he has a tremendous advantage in being his own lawyer at the same time he's the defendant, because he's going to be able to tell you things as a lawyer that he won't be saying that I can cross-examine, I can't question. He will be saying them and I can't question him, if he is not a witness. He's his own lawyer. Keep that in mind while I tell you what I say is not evidence. What he says, in acting as his own lawyer, is not evidence either. It's not evidence because it's not said under oath and it's not subject to cross-examination and questioning by the opposing attorney. So, anything he says, unless he's a witness, you should not regard as evidence, but only argument as to whether or not it's persuasive to you about the evidence.

After the State rested, Porterfield presented two witnesses and rested without taking the stand. The State then began its closing argument as follows:

MR. ALLRED: Thank you, Your Honor. Gentlemen, we will have ten minutes to argue the summation of the case. Mine is to be split up in half. Hopefully I'm going to take about five minutes now.

Basically I just submit to you that what you have, in an effort to raise a reasonable doubt in this case, is nothing more than the unsworn to allegations of a man acting as his own lawyer and the testimony of two of his friends.

MR. PORTERFIELD: Your Honor, may you excuse the jury.

THE COURT: What's the nature?

MR. KILLAM: Can we approach the bench, Your Honor?

(At the bench:

MR. KILLAM: Your Honor, on behalf of Mr. Porterfield, at this time, as an officer of the court, I feel it incumbent upon me to ask the Court for a mistrial of this cause based upon the statement of Mr. Allred that what the jury has before them is the unsworn statement of a man acting as his own attorney. That's making reference to Mr. Porterfield's right to remain silent.

THE COURT: I'd have to overrule that.

MR. ALLRED: Because he's acting as his own lawyer.

THE COURT: I know the nature of your objection, but I believe the circumstances would overrule it.

MR. KILLAM: I ask for a cautionary instruction to the jury.

THE COURT: Overruled.

Bench conference concluded.)

THE COURT: Go ahead.

Thereafter, the prosecutor finished the first segment of his closing argument, and Porterfield addressed the jury. The State made one objection during Porterfield's closing argument which occurred in the following context:

He could have got a warrant to search the apartment or bust the apartment. But he tell you they didn't have time. Well, if they didn't have time, and knowing this kind of drug come out of this apartment, that mean he could have sold you, your kids, anybody elses kid. He never charged sale or whoever supposed to be sold the drugs, they never went back to see if the drugs were there.

This happened on March 14th. I was arrested June 4th.

MR. ALLRED: Judge, I don't want him testifying unless he takes an oath.

THE COURT: Right. Sustained. Now, you can't testify. Stay to the facts of the case.

MR. PORTERFIELD: All right. All right.

After Porterfield finished his closing argument, the prosecutor offered the following rebuttal:

He's not illiterate on the law. He knows exactly what he's doing. And the proof of that is that he stands up and tells you, I didn't sell the drugs. In his closing argument, he didn't sell the drugs. And he wanted to tell you that so bad, let him make it part of the evidence. Let him take an oath to tell the truth and make his denials and his statements and let me get up there and ask him.

MR. KILLAM: Your Honor, I would renew the motion.

THE COURT: Overruled. He's participating.

MR. ALLRED: Let me ask you, Mr. Porterfield, on cross-examination what I've asked your other two witnesses.

MR. KILLAM: Judge, I would ask you to caution Mr. Allred.

THE COURT: Don't go too far.

MR. ALLRED: Let me put to test--

MR. KILLAM: He's doing it, Judge.

THE COURT: All right, Jerry, don't go any further. I mean it.

MR. ALLRED: But he knows exactly what he's doing. He's not going to allow me the opportunity to cross-examine him.

MR. KILLAM: Judge, he's continuing.

THE COURT: Mr. Allred, you keep that up you're going to create a problem. It's a touchy situation. It's hard to balance it.

MR. ALLRED: My point is that he did not deny, he did not make the denials part--

MR. KILLAM: Your Honor.

THE COURT: Mr. Allred, how many times do I have to tell you.

MR. ALLRED: I'm going to go back to something I originally said that you allowed.

THE COURT: Let's don't get into that, and your time is up anyhow. Difficult.

MR. ALLRED: I know it's awkward.

THE COURT: More than awkward.

MR. ALLRED: Right. So all I can do is ask you to consider the evidence in the case, gentlemen. And the evidence that's worthy of belief, I submit to you, is the testimony of these officers.

There's no evidence that these officers are corrupt officers, that they did anything wrong in this case, that they overlooked any procedure in this case that applied to this type of case. This was not a buy-bust.

THE COURT: Time is up. Time is up.

Porterfield was convicted on counts of possession and sale of cocaine, and sentenced to five years imprisonment on each count. This appeal followed.

The State contends that Porterfield, by editorializing during his examination of witnesses and closing argument, was essentially testifying, and that therefore the prosecutor's comments were not "fairly suceptible" of interpretation as commentary on Porterfield's not having actually taken the witness stand. See State v. Marshall, 476 So.2d 150 (Fla.1985). ¹ Put simply, the State argues that Porterfield waived his right to remain silent by testifying during his pro se representation. Second, the State submits that even if the prosecutor's remarks could be construed as commentary on...