Redish v. State

• Court: Florida District Court of Appeals
• Writing for the Court: ERVIN; SMITH; NIMMONS; NIMMONS
• Citation: Redish v. State, 525 So.2d 928, 13 Fla. L. Weekly 1064 (Fla. App. 1988)
• Decision Date: 04 May 1988
• Docket Number: No. BR-370,BR-370
• Parties: 13 Fla. L. Weekly 1064 Dorris Slater REDISH, Appellant, v. STATE of Florida, Appellee.

Page 928

525 So.2d 928

13 Fla. L. Weekly 1064

Dorris Slater REDISH, Appellant, v. STATE of Florida, Appellee.

No. BR-370.

District Court of Appeal of Florida First District.

May 4, 1988.

Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Redish appeals a judgment and sentence adjudicating him guilty and sentencing him to a total of two-and-a-half years' incarceration. We affirm all issues raised, ¹ with the exception of that pertaining to the issue of prosecutorial misconduct, which we agree requires reversal and remand of the case for new trial.

The appellant was accused by information in four counts: with racketeering in violation of the Racketeer Influenced and Corrupt Organization statute (RICO), ² with charging usurious interest, ³ solicitation to commit grand theft, ⁴ and solicitation to make a false and fraudulent insurance claim. ⁵ The state's key witness, Joe Dunson, testified that the appellant had loaned him $6,000, with interest assessed at $1,500 every three months--the equivalent of 100 percent annual interest. After Dunson defaulted on his loan payments, he informed the police that the appellant had suggested that he burn down his house in order to obtain the insurance proceeds. Following up on this information, the police fitted Dunson with a listening device to wear during his next conversation with the appellant. During the course of the recorded conversation, later played before the jury, the appellant discussed at length how Dunson should carry out the suggested arson and warned him about the consequences of not paying the debt.

Contrary to Dunson's testimony, the appellant introduced into evidence loan papers reflecting a loan to Dunson of $7,500 with 12 percent annual interest, together with a mortgage on Dunson's home executed in favor of the appellant. The appellant contended that these papers were evidence of the true transaction between the parties, and that the other material contained in the recorded conversation was just "tough talk" made for the purpose of scaring Dunson into repaying the loan that was actually represented by the promissory note and mortgage. The jury rejected this argument and found the appellant guilty on all counts.

We address only the point on appeal relating to the remarks made by the prosecution during closing argument. The appellant contends that each of the following remarks constituted reversible error:

1. "Of course, Mr. Redish knowing that there was going to be a search of his house or a fifty/fifty chance of it, didn't leave any notes or loans around that show criminal usury--"

2. "Now he's on the stand being tried for this, he's going to lie to you."

3. "Gentlemen, if you succumb to the defense argument, you would be in violation of your oath as jurors."

4. "Despite the attempt to bring religion, to bring race, to bring old age and every other irrelevant issue into this courtroom by the defense and their cheap tactics, I submit that you as jurors with good common sense won't fall for these tricks."

Following the above comments, the defense objected and approached the bench. Only the objection to the second comment was overruled; the trial court sustained objections to the remaining remarks and instructed the jury to disregard them.

We agree with the state that the first two comments do not constitute reversible error. From our examination of the evidence it appears that the first remark was made in response to the appellant's earlier testimony that he had removed his records from his residence when he went out of town. On cross-examination, the appellant admitted that at the time of his departure he had already been questioned by the police, and he suspected that there was a "fifty-fifty chance" that his home would be searched. Under these facts, the trial court's curative instruction to the jury to disregard the inference suggested by the state that appellant had removed incriminating evidence was sufficient to avoid a mistrial.

The second comment, stating that the defendant had lied during his testimony, has been upheld as proper argument if the evidence supports such a conclusion. See Craig v. State, 510 So.2d 857, 865 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988), wherein the Florida Supreme Court observed:

When counsel refers to a witness or a defendant as being a "liar," and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration.

Here the prosecution introduced into evidence a taped conversation, disclosing that the appellant had told Dunson that he owed $1500 interest on the 90-day $6000 debt and warned him that he could lose his life if he did not pay. During direct examination, appellant denied the usurious interest rate and stated that he only wanted to "scare" Dunson into repaying the loan. Thus, the jury was clearly faced with two different versions of the events, and the prosecutor did not exceed the bounds of proper argument by suggesting that the defendant's testimony was fabricated.

We do agree, however, that the last two comments made by the state were improper and sufficiently prejudicial to constitute reversible error. The third remark, that the jury would be "in violation of your oath [sic] as jurors" if they "succumb[ed] to the defense argument," was, in our view, an impermissible attempt by the prosecution to instruct the jury as to its duties and functions. In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the prosecution, in response to the defendant's closing argument, made the following comment:

I don't know whether you call it honor and integrity, I don't call it that, [defense counsel] does. If you feel you should acquit him for that it's your pleasure. I don't think you're doing your job as jurors in finding facts as opposed to the law that this Judge is going to instruct you, you think that's honor and integrity then stand up here in Oklahoma courtroom and say that's honor and integrity; I don't believe it.

470 U.S. at 5-6, 105 S.Ct. at 1041 (e.s.). Although the Supreme Court held that this comment did not constitute plain error, ⁶ the Court stated:

The prosecutor was also in error to try to exhort the jury to "do its job"; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice....

470 U.S. at 18, 105 S.Ct. at 1047-48. See also United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir.1986) ("There should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality.").

In the case at bar, the error, unlike that in United States v. Young, was preserved by timely objection. The rule barring prosecutorial comment, which has the effect of invading the province of the jury by emphatically directing the jurors as to how the evidence should be viewed, has long been accepted by Florida courts. In Carlile v. State, 129 Fla. 860, 176 So. 862, 864 (1937), the Florida Supreme Court stated:

Ultimate deductions from the evidence are for the jury to draw. Counsel may argue what deductions in his judgment the evidence would reasonably support, but under no circumstances is he warranted in offering dogmatic statements as to what the evidence proves.

Cf. Hopper v. State, 54 So.2d 165, 167 (Fla.1951) ("It appears to be well settled that counsel has the right to comment on the sufficiency of the testimony or the legal insufficiency thereof, and the jury has the sole prerogative of settling the disputes and conflicts of the controversy under appropriate instructions.").

Lastly, we consider the prosecution's personal attack on defense counsel by referring to his "cheap tricks" to be clearly beyond the bounds of proper closing argument. In Briggs v. State, 455 So.2d 519, 521 (Fla. 1st DCA 1984), this court stated:

Verbal attacks on the personal integrity of opposing counsel, rather than appropriate comments on the credibility of witnesses and inferences to be drawn from the evidence before the jury, are wholly inconsistent with the prosecutor's role.

See also Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984), pet. for rev. denied, 462 So.2d 1108 (Fla.1985) (resort to personal attacks on defense counsel is an improper tactic which can poison the minds of the jury); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982) (prosecution's personal attacks upon defense counsel were utterly and grossly improper).

The appellee argues that, regardless of the impropriety of the prosecution's remarks, there is overwhelming evidence against the appellant which warrants a finding of harmless error. Were only one of the above comments made by the prosecution, we might be inclined to agree. In light, however, of the prosecutor's repeated misconduct, we cannot say that the trial court's curative instructions were sufficient to dissipate the statements' prejudicial effect. This case is similar to Singletary v. State, 483 So.2d 8 (Fla....