Rodriguez v. State

• Court: Florida District Court of Appeals
• Writing for the Court: EDWARDS, J.
• Citation: Rodriguez v. State, 210 So.3d 750 (Fla. App. 2017)
• Decision Date: 10 February 2017
• Docket Number: Case No. 5D15–3622
• Parties: Marco Antonio RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.

210 So.3d 750

Marco Antonio RODRIGUEZ, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D15–3622

District Court of Appeal of Florida, Fifth District.

Opinion filed February 10, 2017

James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

EDWARDS, J.

Marco Rodriguez appeals his convictions for lewd or lascivious molestation. The jury may have reached the proper verdict, given the evidence in this case. However, there is no doubt that Appellant was denied a fair trial due to egregious prosecutorial misconduct, compounded by defense counsel's unexplained failure to object.¹ We are compelled to vacate Appellant's conviction and remand for retrial. Appellant's retrial is not just a "do over." The alleged victim, a child, will once again have to tell her story of familial sexual molestation to a judge and a second jury, while Appellant will once again be publicly accused and tried for sexually molesting a five-year-old. All of the witnesses' normal schedules will be interrupted as they stand by to testify and attend court. Other parties' trials will be delayed because this case must be tried twice. Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict. Winning at all costs is too high a price to be paid by too many.

A criminal trial is supposed to be conducted in a neutral arena in which both sides offer evidence for the jury's consideration. Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999). "Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence." Merck v. State, 975 So.2d 1054, 1061 (Fla. 2007). "It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice." Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983). If the prosecutor makes clearly inappropriate comments during closing argument, defense counsel has an affirmative duty to contemporaneously object, both to preserve the issue for appellate review, and, for an equally or perhaps more important reason, to give the trial judge a chance to remedy the potential harm by instructing the jury and avoiding its repetition in that trial. Merck, 975 So.2d at 1061 ; Dorsey v. State, 942 So.2d 983, 986 (Fla. 5th DCA 2006). "[T]he trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments." Edwards, 428 So.2d at 359 (citations omitted).

Appellant was on trial with regard to alleged specific incidents of sexual molestation or abuse committed when the victim was five years old. The charged criminal conduct concerned allegations of Appellant forcing the five-year-old victim to masturbate him after they watched an inappropriate animated movie and additional claims that he used a vibrator to massage the five-year-old's vagina. These allegations of abuse came to light approximately ten years later, when Appellant engaged in admittedly inappropriate conduct. Specifically, Appellant confessed to massaging the teen's breasts for about two minutes while they were in a St. Augustine motel room with the victim's sleeping mother.

Appellant was accused of other inappropriate sexually-oriented touching at the motel, but denied these accusations. The next morning, when the mother awoke from her medication-influenced sleep, the victim told her what had taken place the night before and what took place when the victim was five.

The evidence of the charged crimes, namely what allegedly happened when the victim was five, included the victim's and mother's testimony, pretrial statements made to police by Appellant, recorded phone calls between the victim's mother and Appellant, and police testimony. The testimony and statements were not limited to what occurred to the victim at age five; instead, there was an extensive amount of Williams² rule evidence about the events that took place ten years later at the St. Augustine motel.

The prosecutor's initial closing argument fell within the anticipated and acceptable scope of reviewing and commenting on the evidence, the relative credibility of the victim and Appellant, and a discussion of the verdict form. However, during his rebuttal closing argument the prosecutor strayed from acceptable zealous representation, repeatedly crossed far beyond the outer limits of acceptable argument, while venturing deeply into the realm of prosecutorial misconduct. Unfortunately and inexplicably, defense counsel sat silently by, never objecting, during the repeated improper comments made by the prosecutor. Thus, we must consider whether the prosecutor's inappropriate remarks made during closing amount to fundamental error. "Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Crew v. State, 146 So.3d 101, 108 (Fla. 5th DCA 2014) (quoting Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993) ).

The prosecutor repeatedly referred to Appellant as a "pedophile." Inflammatory labels used by a prosecutor to describe the defendant are improper invitations for the jury to return its verdict based on something other than the evidence and applicable law. Vituperative or pejorative characterizations of a defendant are not acceptable tools to be employed by the prosecutor. Crew, 146 So.3d at 109. Calling Appellant a pedophile was "clearly designed to inflame the prejudices of the jury and constituted an impermissible general attack on [his] character." Petruschke v. State, 125 So.3d 274, 280 (Fla. 4th DCA 2013). Referring to a defendant as a "pedophile" suggests the defendant has engaged in repeated sexual abuse of minors and raises a profiling argument, namely that because he is a pedophile, it is likely that he would sexually molest children, including this specific victim. Hudson v. State, 820 So.2d 1070, 1072 (Fla. 5th DCA 2002). Here, the prosecutor referred to Appellant as a pedophile seven times, providing far greater potential for unfair prejudice than a single such reference might, as in the cases relied upon by the State. See McPhee v. State, 117 So.3d 1137, 1139 (Fla. 3d DCA 2012) ; Hudson, 820 So.2d at 1072.

The prosecutor crossed the line again in closing by making the well-known and completely inappropriate "justice for the victim" argument, by stating:

[T]he criminal justice system does not exist only to protect the rights of defendants. ... [T]here's another person in this equation, and that's the victim. The victim has a right to justice, just like he [Rodriguez] does. Equal justice under the law applies not just to defendants, but to victims, as well. He's had his day in court. It's time to give the victim her due. It's time to give her justice.

"A prosecutor's request that the jury show sympathy for the victim ... is clearly improper." Crew, 146 So.3d at 110 (alteration in original) (quoting Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (additional citations omitted)). Such statements have been "uniformly condemned" because they may inflame the minds and passions of jurors. Cardona v. State, 185 So.3d 514, 521–22 (Fla. 2016). Such "arguments have been condemned as unfair, intemperate, and unethical." Edwards, 428 So.2d at 359 (citations omitted). The potential harm of that argument can be sufficiently ameliorated only where such comments are isolated and are met by timely defense objections which are sustained by a trial judge who then instructs the jury to disregard the comments and admonishes the prosecutor to cease. Crew, 146 So.3d at 111–12 (Berger, J., concurring); Dorsey, 942 So.2d at 986. Here, there were no objections, no curative instructions, and no rebuke of the prosecutor for repeatedly crossing clearly established lines.

To further erode the fairness of the trial, during closing arguments, the prosecutor misstated, misrepresented, and/or inaccurately recounted certain evidence, including repeatedly saying that Appellant had admitted to several specific inappropriate sexually-related activities with the victim, when in fact Appellant had consistently, repeatedly denied them. "[M]isquoting a defendant or implying a defendant said something [that he did not] is a misrepresentation of the evidence." Crew, 146 So.3d at 108 (citing State v. Cutler, 785 So.2d 1288 (Fla. 5th DCA 2001) ). As the Sixth Circuit Court of Appeals explained:

Misrepresenting facts in evidence can amount to substantial error because doing so may profoundly impress a jury and may have a significant impact on the jury's deliberations. For similar reasons, asserting facts that were never admitted into evidence may mislead a jury in a prejudicial way. This is particularly true when a prosecutor misrepresents evidence, because a jury generally has confidence that a prosecuting attorney is faithfully observing his obligation as a representative of a sovereignty.

Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (internal citations omitted).

There are more examples of the prosecutor approaching or crossing the line of proper closing argument by: (i) repeatedly calling Appellant a liar³ ; (ii) making nationalistic appeals to what sexual information the people of the United States do not want five year olds to have; (iii) ridiculing Appellant's position with sarcastic remarks and comments; (iv) and stating that Appellant violated one of the most sacred duties of our society by his conduct. Each of these comments invited the...