Walker v. State, AX-372

• Decision Date: 21 March 1985
• Docket Number: No. AX-372,AX-372
• Citation: 10 Fla. L. Weekly 1954,473 So.2d 694
• Parties: 10 Fla. L. Weekly 1954, 10 Fla. L. Weekly 753 James Arthur WALKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 694

473 So.2d 694

10 Fla. L. Weekly 1954, 10 Fla. L. Weekly 753

James Arthur WALKER, Appellant, v. STATE of Florida, Appellee.

No. AX-372.

District Court of Appeal of Florida,

First District.

March 21, 1985.

Rehearing Denied Aug. 14, 1985.

Michael Allen, Public Defender; and Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen.; and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Defendant appeals from a judgment of conviction and sentence on one count of attempted second degree murder while in possession of a firearm and two counts of aggravated assault while in possession of a firearm. He raises six issues on appeal. The first four deal with procedural and substantive errors, and the last two deal with sentencing errors. We affirm the conviction, but reverse and remand for resentencing.

Appellant was charged with three counts of attempted first degree murder arising from an incident in March 1983. A jury trial was held from December 12 through While Williams was in the hospital, Detective Cobb showed him a photo lineup from which he picked out a photograph of defendant as his assailant. He also identified defendant at trial. Similarly, Simmons identified defendant at trial and testified that he had picked out a photograph of defendant from a pretrial photo spread. Defendant objected to the in-court and out-of-court identifications, but such objection was overruled. The photographs of appellant used in the pretrial photo spread showed frontal and profile views and were introduced into evidence over defendant's objections.

                December 15, 1983.  Stated most favorably to the state, the evidence showed that Dexter Williams, Jeff Simmons, and Phillip Brown went to a bar called Scorpio Lounge to get cigarettes.  While Simmons went in to buy the cigarettes, appellant approached Brown and Williams and began a dispute regarding possession of a bicycle.  When Brown refused to allow appellant to hold the bicycle, appellant said, "I'll kill you and take the bicycle."   When Simmons came out of the lounge, appellant stated, "I'll kill all three of you."   He then pulled a pistol from his pants and started shooting, with the first shot hitting Williams in the chest.  The three men fled the scene without turning around to look at appellant after the first shot was fired.  At least two or three total shots were fired.  Williams was hospitalized for approximately one month with a chest and arm wound
                

At the close of the state's case, defendant moved for judgment of acquittal, which was denied. Defendant then rested without presenting any evidence. During closing arguments, defendant objected to statements by the prosecutor indicating his personal belief in the veracity of the state's witnesses. The objection was overruled. During defendant's closing argument, the state objected to defendant's use of a drawing which had been used by defendant during cross-examination but had not been put in evidence. The court ruled that defense counsel could refer verbally to the documents but could not show them to the jury during closing arguments since they were not a part of the record.

The jury returned guilty verdicts of lesser included offenses on each count: count 1--guilty of attempted second degree murder while in possession of a firearm; count 2--guilty of aggravated assault while in possession of a firearm; and count 3--guilty of aggravated assault while in possession of a firearm. With regard to counts 2 and 3, aggravated assault while in possession of a firearm was the least serious offense included within the jury instructions and the jury's verdict form.

At sentencing, defendant affirmatively requested to be sentenced pursuant to the sentencing guidelines. The recommended sentence under the guidelines was seventeen to twenty-two years. The court sentenced defendant to sixty years on count 1, reserving jurisdiction for one-third of the sentence, ten years on count 2, and ten years on count 3, with all sentences to run concurrently. The court explained, in a ten-page written order, its decision to deviate from the sentencing guidelines and sentence appellant as an habitual offender. The court included in its order a summary of defendant's criminal record, which included thirteen arrests since 1972 and two prior felony convictions. Defendant raised various objections to the sentencing procedure, but all were overruled. Defendant timely filed a notice of appeal.

Appellant first contends that the court erred in not allowing defense counsel to use certain exhibits during closing argument which had not been admitted in evidence. We find no merit in this position. It is clear that defense counsel made a tactical decision not to offer the exhibits in order to preserve his right to open and close on closing argument. The trial court did not abuse its discretion in prohibiting defense counsel from showing the exhibits to the jury since they were not a part of the record.

Appellant claims in his second point that reversible error occurred when, during closing argument, the prosecutor made certain statements to the jury intimating his There's a couple of things I want to mention to you right off the bat. And one of the things as I mentioned to you in voir dire, one of the first things I mentioned to you is that I'm the Assistant State Attorney, I'm an assistant to Ed Austin. And there's one thing that we take very seriously and that's responsibility that we have in charging people with crimes. We--it's an awesome responsibility and one thing that we do or I should say one thing we do not do is we do not present testimony, we do not present witnesses unless they have first hand knowledge, they know the things about which they testify. They can't present--

personal belief in the truth and veracity of witnesses. The prosecutor began his argument as follows:

Defense counsel immediately objected to this comment, but the trial court overruled the objection, reasoning it was fair argument in response to previous comments by defendant's attorney as to the awesome power of the state attorney to charge persons with crimes. The prosecutor then continued:

As I was stating and you heard the testimony from Detective Cobb that these additional witnesses did not have first-hand knowledge of the crime. We don't present those witnesses, the Court doesn't permit it and if we do and if you think that we do that we present this type of testimony, then you need to find yourself another State Attorney. Now--

Again, defendant immediately objected, but the court overruled the objection.

It is patently improper for an attorney to suggest in closing argument that he has additional knowledge or additional reasons for believing that certain witnesses are credible or believable. Tampa Transit Lines v. Corbin, 62 So.2d 10 (Fla.1953). The comments in this case are a flagrant violation of the moral, ethical, and legal duty of a state prosecutor. We have previously cautioned of the need to curtail improper argument, failing which we may find it necessary to treat such prosecutorial misconduct as reversible error. Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984). The trial court, however, did not perceive the error and failed to restrain the prosecutor. In light of the overwhelming evidence of appellant's guilt, we cannot hold that these comments so pervaded the trial as to materially affect its outcome and, thus, constitute reversible or fundamental error. More importantly, defense counsel failed to move for a mistrial when the objections were made, so we are compelled to affirm. James v. State, 429 So.2d 1362 (Fla. 1st DCA 1983).

The third point urged by appellant is that the court erred in failing to instruct the jury, as requested by appellant, on the lesser included offenses of improper exhibition of a weapon and discharging a firearm in public. Appellant contends that these offenses are lesser included offenses of those charged in the information.

Initially, we find, with respect to count 1, that even if the court erred in refusing the requested instruction, such error was harmless because the jury's verdict of guilty of attempted second degree murder was not the least severe option the jury was given on that count. The verdict on count 1 could have been guilty of aggravated assault, but the jury chose instead to find appellant guilty of attempted second degree murder. Therefore, it would have made no difference in the jury's verdict if they had been given sentencing options less severe than aggravated assault. The same cannot be said for counts 2 and 3, however, since the jury found defendant guilty of the lowest offenses described in the instructions and verdict. Nevertheless, we find it unnecessary to decide whether the court erred in denying the requested instruction in those counts.

The state argues that this issue is not properly preserved for appellate review because defendant failed to properly object to the failure to give these instructions prior to the time the jury retired to consider its verdict. We agree. The record reflects that the only discussion between defense DEFENSE COUNSEL: All right. The other thing I wanted to ask the Court was on your verdict forms on your lesser included, I would ask the Court to include also the lesser included on Page 101 of the improper exhibition of a weapon and verdict form--or the lesser included on 102, discharging a firearm in public.

counsel and the court regarding the requested instruction was as follows:

THE COURT: I'm not going to give them. Anything further gentlemen? Any specific instructions?

Defense counsel's comments were, at best, a request for an instruction, and did not constitute an objection to the court's failure to give the requested instruction. Certainly...