Thomas v. State

• Court: Florida District Court of Appeals
• Writing for the Court: VAN NORTWICK, J.
• Citation: Thomas v. State, 752 So.2d 679 (Fla. App. 2000)
• Decision Date: 09 February 2000
• Docket Number: No. 1D98-2698.,1D98-2698.
• Parties: Leo A. THOMAS, Appellant, v. STATE of Florida, Appellee.

752 So.2d 679

Leo A. THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 1D98-2698.

District Court of Appeal of Florida, First District.

February 9, 2000.

Rehearing Denied March 17, 2000.

Leo A. Thomas of Levin, Middlebrooks, Thomas, Mitchell, Green, Echsner, Proctor and Papantonio, P.A., Pensacola, for Appellant.

Robert A. Butterworth, Attorney General, Carolyn J. Mosley, Assistant Attorney General, and L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

Leo A. Thomas appeals an order holding him in direct criminal contempt for his comments during closing argument and, as a sanction, imposing a $100 fine. Because Thomas' closing argument, although admittedly unprofessional and unethical, did not either violate a clear order or instructions of the trial court or constitute an act that was facially contemptuous, we are constrained to reverse.

Factual and Procedural History

Thomas was retained by the family of A.F., a then 14 year old minor, to defend her against the charges of attempted first degree murder, aggravated assault with a firearm, and possession of a firearm by a person under the age of 18. The morning of jury selection, the trial court placed on each counsel's table a packet of information. The information included a memorandum from the trial court advising: "Attached you will find a checklist of what may not be argued in closing." In the memorandum, the trial court also reminded counsel of the requirements of Rule 4-3.4(e), Rules Regulating the Florida Bar, which was quoted in relevant part in the memorandum.¹ The packet also included a checklist of what was entitled "NO-NOs" and a copy of Judge Sorondo's concurring opinion in Fryer v. State, 693 So.2d 1046 (Fla. 3d DCA 1997). The cover memorandum closed with the advisory: "Please assure that any arguments made comply with these guidelines." The list of "NO-NOs" sets forth 19 prohibited practices during closing argument, including arguing facts outside the record, commenting on evidence ruled inadmissible, vouching for a witness, appealing to sympathy, and using "over emotionalism." No reference to these materials was included in the pretrial order and the trial court did not discuss the subject further with counsel before trial.

During the criminal trial, the defense argued that A.F. lacked the requisite intent necessary for a conviction because she was intoxicated by the drug Prozac. The record reflects that, during this difficult trial, the trial court and defense counsel disagreed as to the necessity of a Frye² hearing on the effect of Prozac, even though the prosecution had not requested such a hearing. During cross-examination of an expert for the state, Eric Kaplan, M.D., the following colloquy ensued between appellant and this expert:

Q. Now, the views that you have regarding adverse reactions to antidepressants such as Prozac, are these, generally speaking, the same views that the manufacturers have?

A. It's the same views as the manufacturers have, and it's the same views as 99 plus percent of psychiatrists in the United States have.

Q. Okay. So your answer to that is yes?

A. My answer is my answer. My answer is yes and ...

Q. I asked you about your views alone, are they generally the same as the view of Eli Lilly, the company that you work for as a consultant? Yes or no?

A. Okay, well, let me—You just put three questions in there. First of all, I don't work for them, but I am a consultant for them. Second of all, the answer to the question then is yes, for some side effects, no for other side effects. I'm doing some research that shows that with some of these medications, you see side effects that is [sic] not in the package insert according to these pharmaceutical companies.

Q. Well, for example, there was, I think it was in the newspaper yesterday, did you see that article about adverse reactions killing a hundred thousand people a year. Did you read that, by any chance?

A. I did not read that, no.

Q. You did not see that.

A. No, I did not.

Q. You need to read that, Doctor.

A. Okay.

Q. It's in the News Journal yesterday.

MS. SPAIN [the Prosecutor]: Mr. Thomas, can I see that.

A. In that article is it antidepressants they discuss or something else?

Q. They don't discuss—they just talk about adverse reactions to drugs.

A. Okay.

Q. I mean, you do agree that drugs do cause a lot of harm to people ...

A. No ...

Q. The side effects.

A. Well, hold on. You ask me a question.

Q. Right.

A. No, I do not agree that drugs do a lot of harm to patients. I think in the vast majority of circumstances, medications are very helpful and often save lives. I think in some circumstances people get side effects.

The trial proceeded, and during closing argument, Thomas stated:

Now what about Dr. Breggin [the expert on Prozac for the defense]? A critic of drugs? Heck, yes, he's a critic of drugs. Any reason to be? When a hundred thousand people in a year die from adverse drug reaction. I [don't blame him] ...³

The state's objection was sustained by the court, and the jury was instructed to disregard Thomas' comment. Shortly thereafter, Thomas further argued, as follows:

The first time according to the boys, what they said, the gun comes out is when Waylon, 6-foot one or 6 foot two, 220 pounds, starts coming at her. That's when the gun comes out. And this is some hundred pounds or 150 pounds more, who the evidence has shown and there's been no rebuttal has sexually assaulted this young girl.

MS. SPAIN: I'm going to object, your honor. There's been—

THE COURT: Sustained.

MS. SPAIN:—to that.

THE COURT: Sustained. It was indirect impeachment evidence.

MR. THOMAS: No. It was from the two experts and the Court—this is exactly what I asked you earlier, Judge, to allow me to introduce it.

THE COURT: And I denied it, and I've gone over and over again. It's not direct evidence.

MR. THOMAS: Well, could we approach the bench on this then?

THE COURT: No. I've already made my ruling. You will not discuss that.

Thomas concluded his closing as follows:... it's been a long time since my teens, but those were wonderful years. And the loss of one of those years is tragic, of course. And what would I ask you at this time, is to consider the facts and ask yourselves has the State proved beyond a reasonable doubt. If they haven't, you need to send [A.F.] back to her family so that she can get the tender loving care and the treatment she needs.

The state again objected, and the trial court responded:

The objection is sustained and the jury is instructed to clearly disregard that. It is clearly inappropriate for an attorney in closing arguments to make appeals to sympathy, prejudice, or a juror's self-interest. And any appeals to your sympathy—when I do the instructions tomorrow, there will be a clear instruction that you're not to decide this case based upon any bias, sympathy, prejudice or any of these. Your sole job is to listen to the evidence and listen to my instruction on the law tomorrow and pull those two together. And, as I said before the attorneys started speaking, that what they say is not evidence in the case nor your instructions on the law. So I ask you—or instruct you to disregard any appeal to sympathy in this case. Go ahead.

The jury returned a verdict finding A.F. guilty of attempted second degree murder, a lesser offense of attempted first degree murder, aggravated assault with a firearm, and possession of a firearm by a minor. Thereafter, the trial court served Thomas with an order to show cause why he should not be held in direct criminal contempt. In the order, the trial court stated that the packet of information was delivered to counsel before trial which specifically listed "what may not be argued at closing" and which "required counsel to `assure that any arguments made comply with the (given) procedures.'" The trial court further recounted how appellant "inappropriately" commented on a newspaper article during his cross-examination of the state's expert and how shortly after this cross-examination, while attempting to bolster the credibility of his own witness appellant commented that his witness had reason to be a critic of drugs—such as Prozac— because "100,000 people die from adverse drug reaction." The trial court noted that appellant commented, "I don't blame him." The trial court further stated in the order to show cause that the cross-examination of the state's expert and the comment during closing arguments about the contents of the newspaper article "violated this Court's order, applicable law and ethical constraints for numerous reasons." The trial court continued:

No witness ever acknowledged even reading the [newspaper] article much less relying on the statements therein. The article's contents were never admitted into evidence. Mr. Thomas made gratuitous comments about the article when the witness denied knowing or relying upon its content. Nonetheless, Mr. Thomas inappropriately used the contents of the article in his closing argument to enhance or vouch for the credibility of his own witness and/or state his own personal beliefs on the issue.

The trial court also mentioned in the order to show cause that appellant "inappropriately" appealed to the jurors' sympathy in his closing by stating that if the State had not met its burden of proof, then "you [i.e., the jury] need to send [A.F.] back to her family so she can get the tender loving care and the treatment that she needs." (Bracketed material added).

The trial court then explained:

5. Taking these comments in light of the trial and issues raised therein, this Court reluctantly believes that the inappropriate comments regarding the contents of the newspaper article and appealing to the jurors' sympathy were neither accidental nor incidental and were in direct conflict with this Court's express written instructions. The comments appear both intentional and well calculated to address the heart of the Defendant's case. The

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