Ryan v. State, 83-201

• Citation: 457 So.2d 1084
• Decision Date: 19 September 1984
• Docket Number: No. 83-201,83-201
• Parties: Patricia Marie RYAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1084

457 So.2d 1084

Patricia Marie RYAN, Appellant, v. STATE of Florida, Appellee.

No. 83-201.

District Court of Appeal of Florida,

Fourth District.

Sept. 19, 1984.

Bennie Lazzara, Jr., of Bennie Lazzarra, Jr., P.A., Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Patricia Marie Ryan was tried by jury and convicted of possession of cocaine and sentenced to five years in prison. She was also convicted of engaging in a criminal offense with weapons and sentenced to 15 years of probation. She appeals. We reverse and remand for a new trial because of prosecutorial misconduct which constituted harmful error under the concepts of State v. Murray, 443 So.2d 955 (Fla.1984).

Appellant asserts, and we agree, that she was denied a fair trial as a result of the improper and inflammatory comments made by the State Attorney during closing argument. As a preliminary matter, we point out that the prosecuting attorney and the appellate attorney for the state were not the same person.

Briefly, the facts are as follows: Appellant is a member of a well-to-do Palm Beach County, Florida family. The alleged criminal offenses took place at her father's ranch, the Diamond T, in Martin County, Florida.

On March 1, 1981, appellant, a licensed realtor, went out to a building on the Diamond T called the "big house" for the alleged purpose of showing the ranch to some buyers. That same day, Tilton, an off-duty deputy, noticed a low flying, twin engine plane passing several times over the back property of the Diamond T. The plane aroused Tilton's suspicion. He notified the sheriff who came out to the Diamond T and set up a surveillance. At that time, the sheriff observed two vehicles exiting from the back of the property. As soon as the vehicles left the ranch, they were stopped and searched by the sheriff. One vehicle contained parachutes, packages of cocaine, and guns, the other contained two air-to-ground radios, a walkie-talkie, a ham radio, and guns.

After the drivers and passengers were arrested, Officer Murphy spotted appellant's car leaving the "big house" and then quickly returning. Murphy approached appellant and arrested her. She claimed that she had returned to lock up the house because the prospective buyers did not show up. No cocaine or weapons were found in appellant's possession. At that time, Officer Murphy discovered David Deroscher exiting out the back of the "big house" and arrested him.

Deroscher turned out to be the State's star witness. His trial testimony revealed Robert Bogue as the leader of the drug drop operation. No direct evidence against appellant was elicited from Deroscher.

Because appellant was not in actual possession of the cocaine or the weapons, she was tried as an aider and abettor. The evidence used to convict appellant was purely circumstantial. We do not deny that a conviction can stand on circumstantial evidence alone. Navarro v. State, 262 So.2d 729 (Fla. 3d DCA 1972). Instead, we point out that in a close case, such as the one at hand, particularly careful attention must be given to improper prosecutorial comments. Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

As a general rule, improper prosecutorial remarks can constitute reversible error when such remarks may have prejudiced and influenced the jury into finding the defendant guilty. Grant v. State, 194 So.2d 612 (Fla.1967).

The Florida Supreme Court recently expounded upon this issue in Murray, supra. Justice Shaw, speaking for the Court stated:

[P]rosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether "the error committed was so prejudicial as to vitiate the entire trial." Cobb, 376 So.2d at 232. The appropriate test for whether the error is prejudicial is the "harmless error" rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny. We agree with the recent analysis of the Court in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The supervisory power of the appellate court to reverse a conviction is inappropriate as a remedy when the error is harmless; prosecutorial misconduct or indifference to judicial admonitions is the proper subject of bar disciplinary action. Reversal of the conviction is a separate matter; it is the duty of appellate courts to consider the record as a whole and to ignore harmless error, including most constitutional violations.

Id. at 956.

After having reviewed the record and having applied the harmless error rule pursuant to Murray, we find the remarks made by the prosecutor during closing cannot be considered harmless and demand a reversal.

Appellant argued that the prosecutor's improper comments fell into the categories of 1) appeal to bias, passion and prejudice; 2) personal attacks upon defense counsel; 3) commenting on facts not in evidence; 4) law enforcement officers believed the defendant guilty; and 5) comment on defendant's failure to testify. We reproduce them here with our notes, headings, legal analysis, and supplied emphasis.

1) Appeal to Bias, Passion, and Prejudice

The prosecuting attorney adopted, as a trial strategy, a rich versus poor theme which permeated the entire context of his final argument. As these comments illustrate, the prosecutor constantly emphasized the fact that appellant came from money and her attorney was an outsider from a big city:

But the rich get preferential treatment. She was not handcuffed on the way to jail, just as any one else would be treated. Her Palm Beach lawyer boyfriend comes up and wants the money back and they give that back, because she comes from money, and unconsciously people tend to be subservient. And we are asking you not to be subservient to money.

....

But we have shown that a rich person's daughter did do this. We have shown that a rich person's daughter didn't have much money herself. Maybe Daddy had to work for his money, way back when, but the children ought to not live up to their parent's potential. You've seen that before. Why should she, when Patty Ryan can go out and make hundreds of thousands of dollars, according to Carter Osleber, in this, why should she toil like everyone else?

....

Now, will the truth surface? Will you people do something that later in your lives you'll regret? Will you listen to the man from Tampa, and he can go back to Tampa, and we can all still live here in this community; and he says, "let her go. Let her walk out the door, because the State's case is not there." That this is all figments of someone's imagination. Are you going to do that?

The man from Tampa is appellant's attorney, Mr. Lazzara. This last comment is indicative of the prosecutor's attempt to alienate appellant from the Martin County jury.

At the time of this trial much publicity was circulating concerning cocaine and the life-in-the-fast-lane mode of living adopted by some Palm Beach residents. As indicated by the statement below, the prosecutor attempted to persuade the jury that appellant fitted into that jet-set scene. It is interesting to note that the record reveals appellant and her family were from West Palm Beach not Palm Beach as the prosecutor suggests.

There's been a lot of publicity recently about the lifestyle in Palm Beach and some of you may find it interesting, but I think it proves a point. When you come from a rich family--and it's hard to live up to what your parents have shown, or your parents have been able to achieve--and you can either try to repeat and do as well as your parents did, or you can try to cheat and get there through quick means. That's what's wrong with this whole society today. Nobody wants to work for their money. Everyone is out to get rich quick. Patricia Ryan found a quick way to make money. That's all she's tried to do.

And also there tends to be this excitement. It's life in the fast lane with cocaine. You've seen Time Magazine covers, I'm sure you've heard about it on T.V. It's an exciting drug. Movie stars take it. Movie stars get killed by taking it. It rules people's lives, but it's also exciting.

In continuing the "rich" theme, the prosecutor attacked appellant's family and attempted a creative link between her and Patricia Hearst.

The defense brings with him a whole flange of people, half of which have never even been identified. I don't know who they are. Maybe you do. And they packed the courtroom with family members, to try--again, it's an intimidation move to show--or they're trying to impress you that rich will win out; that because she's rich or that her parents are rich, that that is going to affect your decision.

....

There was a trial not too long ago, that you may recall, that involved another Patty, another rich Patty. Another rich Patty whose parents wanted to buy a fancy attorney to deal with the case and to hope to float some ridiculous defense to the jury. Her name was Patricia Hurst. [sic] The jury didn't buy that one, did they?

MR. LAZZARA: Your Honor, I'm going to object to this line of argument. I don't know what relevancy it has and it's improper argument, and I believe I'll object to it on those grounds.

THE COURT: It's just argument. I told the jury before what the lawyers say isn't evidence it's just argument. It's just there to help you, if you see fit to accept it, but you can reject it. I'll overrule the objection.

No doubt spurred on by the trial judge's seeming acquiescence of his trial tactics, the prosecutor continued his prejudicial attack.

And I call on Mr. Lazzara, in his closing, to tell us the evidence they're relying on. Don't tell us what the family wants him to say ... but we're not going to let you ruin our State and our...