FELIX ZAMOT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Felix Zamot appeals his first-degree murder conviction, challenging the admission of his confession, jury instructions, sufficiency of evidence, and the prosecutor's inflammatory closing argument. The appellate court affirmed the conviction, finding the prosecutor's argument improper but harmless given the overwhelming evidence of guilt.
The court held that the confession was admissible as freely and voluntarily given, a grand larceny instruction was not appropriate for a first-degree murder indictment, the evidence was sufficient to sustain conviction, and although the prosecutor's closing argument was highly improper, it did not warrant reversal because the evidence of guilt was overwhelming and the insanity defense was exceedingly weak.
[1] A defendant's confession is admissible in evidence if it was freely and voluntarily given.
[2] A jury instruction on a lesser included offense is not required when the indictment is for a higher degree of homicide.
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Join FLexlaw to unlock all legal intelligence“the prosecuting attorney's final argument to the jury which is complained of on this appeal was highly improper, cannot be justified as a proper retaliatory argument against an otherwise proper argument by defense counsel, and, ordinarily, would call for a reversal of the conviction herein.”
Establishes that the prosecutor's argument was improper and would normally warrant reversal, but does not in this case due to harmless error analysis.
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Join FLexlaw to unlock all legal intelligenceFelix Zamot was convicted of first-degree murder in the Circuit Court for the Eleventh Judicial Circuit of Florida. Zamot gave a confession that was f…
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HUBBART, Judge.
The defendant Felix Zamot appeals a judgment of conviction and sentence for a first degree murder entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. He urges on appeal that the trial court erred: (1) in allowing the defendant’s confession in evidence; (2) in not giving an instruction to the jury on grand larceny; (3) in denying the defendant’s motion for judgment of acquittal made at the close of all the evidence and the defendant’s post-trial motion for new trial in that the evidence was insufficient to support the verdict, and (4) in denying the defendant’s motion for mistrial based on the prosecuting attorney’s inflammatory final argument to the jury.
We have no problem in disposing of the defendant’s first three contentions. The defendant’s confession was freely and voluntarily given and was admissible in evidence. State v. Francois, 197 So. 2d 492 (Fla.1967); In re W. J. N., 350 So. 2d 119 (Fla. 4th DCA 1977); Doerr v. State, 348 So. 2d 938 (Fla. 2d DCA 1977); Ponder v. State, 323 So. 2d 296 (Fla. 3d DCA 1975); T. B. v. State, 306 So. 2d 183 (Fla. 2d DCA, 1975). A jury instruction on grand larceny did not lie on this indictment for first degree murder. See Brown v. State, 206 So. 2d 377 (Fla.1968). And the evidence was more than sufficient to sustain the instant conviction. State v. Jefferson, 347 So. 2d 427 (Fla.1977); Hoover v. State, 212 So. 2d 95 (Fla. 3d DCA 1968); Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965).
We have some difficulty, however, in resolving the defendant’s last contention. Undoubtedly, the prosecuting attorney’s final argument to the jury which is complained of on this appeal was highly im proper,1 cannot be justified as a proper retaliatory argument against an otherwise proper argument by defense counsel, and, ordinarily, would call for a reversal of the conviction herein. Grant v. State, 194 So. 2d 612 (Fla.1967); Singer v. State, 109 So. 2d 7 (Fla.1959); Williams v. State, 68 So. 2d 583 (Fla.1953); Stewart v. State, 51 So. 2d 494 (Fla.1951); Davis v. State, 214 So. 2d 41 (Fla. 3d DCA 1968). Our review of the record, however, convinces us that this argument, although highly improper, did not materially contribute to this conviction. The evidence of the defendant’s guilt was overwhelming; moreover, the insanity defense raised by the defendant was exceedingly weak and was decisively refuted by the psychiatric testimony at trial. As such, we must conclude that the state’s argument in the context of this case did not compel the trial court to grant a mistriai herein. Darden v. State, 329 So. 2d 287 (Fla.1976); Collins v. State, 180 So. 2d 340 (Fla.1965); Wingate v. State, 232 So. 2d 44 (Fla. 3d DCA 1970). See Traynor, The Riddle of Harmless Error (1970).
This opinion should not be interpreted as approving the argument made by the prosecuting attorney in this case. Although we have declined to reverse this conviction, we are not holding that this argument is permissible and can be made again in a different case with impunity. Indeed, it is our view that, had the case been close on the issue of guilt or innocence, a different result would be required.
Affirmed.
. The prosecutor argued that he was glad he, and inferentially the jury, did not meet up with the defendant in a dark alley. This argument carried the unmistakable message that had this occurred, the defendant would have assaulted, and perhaps killed, the prosecutor as well as the jury. Specifically the prosecutor stated:
“He [the defendant] is a victim of society, he is a person who has been victimizing society all his life. He has been a person who doesn’t care. He doesn’t give a damn who he hurts. He couldn’t care less. You know, that is what that man’s life was worth to him. That boy, well, he kills like a man. He killed that man in cold blood. That boy. Give that boy a chance. That boy, who? I’m sure we all feel, my God, I’m lucky I didn’t meet him in a dark alley. That boy. Geez, I’m sorry, I’m glad I never met up with that boy.” [emphasis added]
The defense counsel objected to this argument and moved for a mistrial. The trial court denied the motion for mistrial.
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Cited By (18 total)
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State v. Murray, 443 So. 2d 955 (Fla. 1984)…HAW, Judge. Petitioner seeks review of Murray v. State, 425 So. 2d 157 (Fla. 4th DCA 1983), because of direct and express conflict with Cobb v. State, 376 So. 2d 230 (Fla.1979); Tacoronte v. State, 419 So. 2d 789 (Fla. 3d DCA 1982); Zamot v. State, 375 So. 2d 881 (Fla. 3d DCA 1979); and Oliva v. State, 346 So. 2d 1066 (Fla. 3d DCA), cert. dismissed, 348 So. 2d 951 (Fla.1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Respondent was…
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Blair v. State, 406 So. 2d 1103 (Fla. 1981)…air and impartial verdict could not be rendered.” Oliva v. State, 346 So. 2d 1066, 1068-69 (Fla. 3d DCA 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). They did not “materially contribute to this conviction”, Zamot v. State, 375 So. 2d 881, 883 (Fla. 3d DCA 1979) were not “so harmful or fundamentally tainted so as to require a new trial”, Smith v. State, 354 So. 2d 477, 478 (Fla. 3d DCA 1978); and were not so inflammatory that they “might have influenced the jury to reach a more sever…
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Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987)…105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); Nicholson v. State, 486 So. 2d 688 (Fla. 3d DCA), rev. denied, 500 So. 2d 545 (Fla.1986); Tarpley v. State, 477 So. 2d 63 (Fla. 3d DCA 1985); Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985); Zamot v. State, 375 So. 2d 881 (Fla. 3d DCA 1979). Courts are also more likely to excuse prosecutorial excesses in death penalty cases since the situation automatically engenders “florid arguments and dramatic perorations.” Collins v. .State, 180 So. 2d 340, 342 (Fla.1965); see,…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (18 total)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Singer v. State, 109 So. 2d 7 (Fla. 1959)
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Darden v. State, 329 So. 2d 287 (Fla. 1976)
- Stewart v. State, 51 So. 2d 494 (Fla. 1951)
- LEE A. Tharpe Constr. Co. v. Chivers, 194 So. 2d 612 (Fla. 1967)
- Wingate v. State, 232 So. 2d 44 (Fla. 3d DCA 1970)
- Collins v. State, 180 So. 2d 340 (Fla. 1965)
- T. B. v. State, 306 So. 2d 183 (Fla. 2d DCA 1975)
- Hoover v. State, 212 So. 2d 95 (Fla. 3d DCA 1968)