Reynolds v. State

• Citation: 580 So.2d 254
• Decision Date: 13 May 1991
• Docket Number: No. 89-2668,89-2668
• Parties: John REYNOLDS, Appellant, v. STATE of Florida, Appellee. 580 So.2d 254, 16 Fla. L. Week. D1352
• Court: Court of Appeal of Florida (US)

Page 254

580 So.2d 254

John REYNOLDS, Appellant, v. STATE of Florida, Appellee.

No. 89-2668.

580 So.2d 254, 16 Fla. L. Week. D1352

District Court of Appeal of Florida,

First District.

May 13, 1991.

Rehearing Denied July 12, 1991.

Barbara M. Linthicum, Public Defender, and Lynn A. Williams, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Virlindia Doss, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

John Reynolds appeals a final judgment adjudicating him guilty of four counts of sexual battery and one count of burglary of a dwelling with assault. He was sentenced as a habitual felony offender to concurrent terms of life in prison. Reynolds raises nine issues on this appeal.

Reynolds is a black man; the alleged victim is a white woman. Reynolds contends that the prosecutor's repeated references to race during trial, suggesting that white women are not safe from Reynolds and that consensual relations between a white woman and a black man are not allowed, deprived him of a fair trial and due process of law in contravention of Article I, Section 9, of the Florida Constitution, and Amendments V, VI, and XIV of the United States Constitution. The defendant's attorney failed to make contemporaneous objections to the prosecutor's statements at any point in the trial, and the state argues that this issue is not properly preserved for appellate review due to the lack of timely objections. But even if this issue is reviewable, the state further argues, the prosecutor's statements were legitimate questions and comments on the evidence because they were relevant to Reynolds's defense of consent; that is, relevant to prove that the victim did not consent to having sexual intercourse with Reynolds.

As we view it, the controlling issue is whether the subject statements injecting the race issue were so egregious and pervasive that they constitute fundamental error, i.e., that "neither rebuke nor retraction will destroy their influence, and a new trial should be granted despite the absence of an objection or even in the presence of a rebuke by the trial judge." Robinson v. State, 520 So.2d 1, 7 (Fla.1988). We hold, for the reasons discussed below, that the prosecutor's comments meet the applicable test for fundamental error and reverse for a new trial.

The prosecutor's references to race at trial were not isolated but appeared throughout the entire trial. The prosecutor's focus on the difference in race between the defendant and the victim began with the voir dire examination of potential jurors, appeared in the state's opening statement and during examination of witnesses, and was relied on in closing argument. The following are examples. During the jury selection proceedings, the prosecutor stated:

Ladies and gentlemen, as you have probably become well aware, the Defendant in this trial is a black male; the alleged victim is a white female. Are there any of you who have either dated, married, had any kind of relationship with a person of the black race? Any of you? (No answer) Are there any of you who have a child or relation who has been or is in those circumstances? ¹

During opening argument, the prosecutor stated:

He did not pull a gun, ladies and gentlemen, and I don't know that there will ever be any evidence that he really had a gun, but he told her--this black man standing in her apartment when she came down the hall, he told her he had a gun....

During his examination of the victim and other witnesses, the prosecutor inquired whether the victim ever "dated a black boy or black man before," whether the victim "ever consensually had any kind of relations with a black man", whether the victim was "ever known to consort with black men or boys," and whether the victim ever "fought a black man before." ² During closing argument, among other things, the prosecutor stated:

Ladies and gentlemen, the question is not whether he had a gun, but whether [F.L.] feared John Reynolds, whether she feared a black man who had appeared in her apartment without her invitation....

* * * * * *

I want you to think about how embarrassing it is for an 18-year old white girl from Crestview to admit she was raped by a black man. It is humiliating.

* * * * * *

If you're going to believe John Reynolds' defense, you have to believe that in two short casual conversations and one phone call, that this man was able to win over the romantic affection of an 18-year old white girl from Crestview. You heard her, she is intelligent, she is articulate, she is from a family of educators. You saw her ex-husband. That is the kind of man she is attracted to. He is intelligent, he is articulate, he is attractive, and he is white. And you heard the Defendant, ... when he testified, and in the first few minutes of his testimony you knew that it was not and could not be the truth that she was attracted to him.

Despite Reynolds's failure to contemporaneously object, we conclude that the prosecutor's racial comments, which focused on the crucial issue of consent and improperly injected the issue of race into the prosecution, were so egregious and so pervasive that Reynolds was deprived of his right to a fair trial. Similar comments have been held to constitute fundamental error requiring automatic reversal where they so infected the trial with racial prejudice and unfairness as to deny the defendant due process of law. See, e.g., Miller v. State of North Carolina, 583 F.2d 701, 703-704 (4th Cir.1978) (rape convictions reversed where prosecutor's summation, without any objection from the defense, included references to the defendants as "these black men" and statements that a defense based on consent was inherently untenable because no white woman would ever consent to having sexual relations with a black man, "so infected the trial with unfairness as to deny the defendants due process of law."); ³ United States ex rel. Haynes v. McKendrick, 350 F.Supp. 990, 998-1005 (S.D.New York 1972), affirmed, 481 F.2d 152 (2d Cir.1973) (in robbery prosecution, prosecutor's overt racial remarks during closing, without objection, maligning defendants' race and inviting the jury to view black people as a whole and the defendants in particular as members of a group that was not really a part of the same community as the jury were prejudicial and denied defendants the right to a fair trial; "[t]he...