Thornton v. State, No. 3D02-1330.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSCHWARTZ, Chief.
Citation852 So.2d 911
Docket NumberNo. 3D02-1330.
Decision Date20 August 2003
PartiesHenry THORNTON, Appellant, v. The STATE of Florida, Appellee.

852 So.2d 911

Henry THORNTON, Appellant,
v.
The STATE of Florida, Appellee

No. 3D02-1330.

District Court of Appeal of Florida, Third District.

August 20, 2003.


Bennett H. Brummer, Public Defender and Scott W. Sakin, Special Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Jill K. Traina, Assistant Attorney General, for appellee.

852 So.2d 912
Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge

SCHWARTZ, Chief Judge.

This is an appeal from a conviction after a jury trial for first degree murder. We reverse for two separate reasons, each of which would individually require a new trial.

I.

The first arises from the following question asked by the prosecutor in the attempted impeachment of one of the state's own witnesses:

[MR. TALPINS]
Q. Did Defendant Thornton talk to you about an incident, where something he did by club V.I.P. or near club V.I.P.?
A. No.
Q. Did Mr. Thornton tell you that he had to quote unquote, "Burn a nigger near the V.I.P.?" [e.s.]

It is difficult to imagine a more serious violation of the rules of evidence and due process, indeed of the rule of law itself, than this statement. Since it developed (a) that the only possible source for this comment was an alleged statement by the witness to the prosecutor himself and (b) that it was not shown to be related to the crime with which Thornton was charged, the question was in simultaneous violation of several important principles of law. These include:1

1. the principle of Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which forbids references to alleged prior unrelated offenses purportedly committed by the defendant;

2. the doctrine of Smith v. State, 414 So.2d 7 (Fla. 3d DCA 1982) and Marsh v. State, 202 So.2d 222, 224 (Fla. 3d DCA 1967), which precludes a prosecutor from asking questions which imply the existence of damaging facts which are themselves inadmissible into evidence;

The damaging effect of [such] inquiry on the jury is apparent. The representative of the State Attorney's office by his question must have led the jury to believe that such a statement had been made, and in effect the jury are invited by such a query to weigh the veracity of the appellant-defendant as against that of the State Attorney's office ... Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Marsh, 202 So.2d at 224; and

3. most serious of all, the rule which forbids even a prosecutorial intimation, let alone the direct accusation that the defendant used a despicable racial slur. See Echemendia v. State, 735 So.2d 555 (Fla. 3d DCA 1999); McCallister v. State, 779 So.2d 615 (Fla. 5th DCA 2001); Perez v. State, 689 So.2d 306 (Fla. 3d DCA 1997).

No trial which contains a statement like this may be permitted to stand.

II.

As a completely separate matter, the state's final argument, just as the one it made to a separate jury in the case of Thornton's co-defendant, which resulted in a reversal on that ground in Adams v. State, 830 So.2d 911 (Fla. 3d DCA 2002), was fundamentally improper. Of the depressingly long list of improprieties,2 we

852 So.2d 913
are content to discuss in detail only what is probably the most egregious, the suggestion that defense counsel was involved in coaching his witnesses or worse
MR. NOVICK [prosecutor]
Mr. Pitts [defense counsel] says to you physical evidence can't lie, but witnesses, you can get them to say what you want.
Is that what happened with Karen Wilson and Spider Bechum?
They were going to say what the defense wanted them to—
* * *
MR. NOVICK:—to place Henry Thornton two years later at their home all day.3

As this court sitting en banc stated in the directly applicable decision of Lewis v. State, 780 So.2d 125, 130 (Fla. 3d DCA 2001):

The prosecutor made several attacks on defense counsel's integrity and implied that he suborned perjury:
If he could walk polka dotted pink elephants into this courtroom, he would do it ... [defense counsel] is a highly skilled attorney with razor sharp skills.
. . .
Also, did [the defendant] look like a little kid up on that witness stand yesterday? What you saw was an extremely well produced, and directed, and scripted story. And as sure as I am standing before you right now, you know that they went over, and over, and over, that story until they got it right.
. . .
If I had a bridge, I would ask him to sell it for me.
. . .
But [defense counsel] will tell you anything to get you to look away from the man who is sitting next to him,
...

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5 practice notes
  • State v. Ramey, No. A04-1056.
    • United States
    • Supreme Court of Minnesota (US)
    • September 14, 2006
    ...and expressed frustration that the court's "prior efforts to eliminate the practice have proven entirely inadequate." Thornton v. State, 852 So.2d 911, 914-15 (Fla.Dist.Ct.App.2003) (citation omitted). The problem is not new: 60 years ago Judge Jerome Frank of the Second Circuit Court of Ap......
  • Stephenson v. State, No. 3D08-1107.
    • United States
    • Court of Appeal of Florida (US)
    • April 21, 2010
    ...such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So.2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's attempted impeachment asking whether defendant said he had to "burn a n----r" improperly referred to unrelate......
  • Stephenson v. State, No. 3D08-1107 (Fla. App. 3/3/2010), No. 3D08-1107.
    • United States
    • Florida District Court of Appeals
    • March 3, 2010
    ...such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So. 2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's Page 7 impeachment asking whether defendant said he had to "[b]urn a n____r" improperly referred to unrelate......
  • Thornton v. State, No. 3D05-1892.
    • United States
    • Court of Appeal of Florida (US)
    • August 1, 2007
    ...and LAGOA, JJ., and SCHWARTZ, Senior Judge. LAGOA, J. After this court reversed and remanded for a new trial in Thornton v. State, 852 So.2d 911 (Fla. 3d DCA 2003)("Thornton I"), the State tried and convicted the defendant for a second time on the charges of first-degree murder and armed ro......
  • Request a trial to view additional results
5 cases
  • State v. Ramey, No. A04-1056.
    • United States
    • Supreme Court of Minnesota (US)
    • September 14, 2006
    ...and expressed frustration that the court's "prior efforts to eliminate the practice have proven entirely inadequate." Thornton v. State, 852 So.2d 911, 914-15 (Fla.Dist.Ct.App.2003) (citation omitted). The problem is not new: 60 years ago Judge Jerome Frank of the Second Circuit Court of Ap......
  • Stephenson v. State, No. 3D08-1107.
    • United States
    • Court of Appeal of Florida (US)
    • April 21, 2010
    ...such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So.2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's attempted impeachment asking whether defendant said he had to "burn a n----r" improperly referred to unrelate......
  • Stephenson v. State, No. 3D08-1107 (Fla. App. 3/3/2010), No. 3D08-1107.
    • United States
    • Florida District Court of Appeals
    • March 3, 2010
    ...such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So. 2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's Page 7 impeachment asking whether defendant said he had to "[b]urn a n____r" improperly referred to unrelate......
  • Thornton v. State, No. 3D05-1892.
    • United States
    • Court of Appeal of Florida (US)
    • August 1, 2007
    ...and LAGOA, JJ., and SCHWARTZ, Senior Judge. LAGOA, J. After this court reversed and remanded for a new trial in Thornton v. State, 852 So.2d 911 (Fla. 3d DCA 2003)("Thornton I"), the State tried and convicted the defendant for a second time on the charges of first-degree murder and armed ro......
  • Request a trial to view additional results

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