JOSE GOMEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jose Gomez was convicted of aggravated assault, aggravated battery, and firearm possession following a jury trial. The Florida appellate court reversed and remanded for a new trial based on prosecutorial misconduct during closing argument, where the prosecutor made inflammatory statements calling defendants 'assassins' and urging the jury to put them away.
The court held that the prosecutor's remarks were so egregious that reversal is compelled. The court rejected the state's argument that overwhelming evidence of guilt could cure the prosecutorial misconduct, particularly where the allegedly overwhelming evidence relied upon perjured testimony.
[1] Prosecutorial remarks during closing argument referring to defendants as 'assassins' and urging the jury to prevent them from 'walk[ing] away' constitute reversible misco…
[2] A prosecutor's argument that the jury has a duty to convict and has previously agreed to do so is improper.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Don't let that gentleman [Luis Martinez] with three children and a wife walk away without justice in this case, facing possible jail, an arm that's hideously changed the rest of his life and let these gentlemen [the defendant and codefendant] walk away into our community and commit further crimes of this nature. These assassins must be put away. It is your duty to do that.”
The prosecutor's closing argument statements that the court found egregious and requiring reversal.
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Join FLexlaw to unlock all legal intelligenceGomez was tried for aggravated assault, aggravated battery, and possession of a firearm while engaged in a criminal offense. The victim, Luis Martinez…
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PER CURIAM.
We add to the growing list of cases1 requiring reversal on the basis of prosecutorial misconduct the case of Jose Gomez. He was convicted, following a jury trial, of aggravated assault, aggravated battery and possession of a firearm while engaged in a criminal offense.
The remarks which occasion this reversal were made during closing argument when the prosecutor concluded by saying:
Don’t let that gentleman [Luis Martinez] with three children and a wife walk away without justice in this case, facing possible jail,2 an arm that’s hideously changed the rest of his life and let these gentlemen [the defendant and codefendant] walk away into our community and commit further crimes of this nature. These assassins must be put away.3 It is your duty to do that. You told me you’ll do that. (Footnotes added).
The remarks here are so egregious that reversal is compelled. United States v. Modica, 663 F. 2d 1173 (2d Cir. 1981); Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1981); Harper v. State, 411 So. 2d 235 (Fla. 3d DCA 1982); McMillian v. State, 409 So. 2d 197 (Fla. 3d DCA 1982); see generally ABA Standards for Criminal Justice, 3-5.8 (1980).
The state suggests that we overlook the error complained of in view of the ‘overwhelming’ evidence of guilt in this case. The overwhelming evidence of guilt upon which the state relies is the admitted perjured testimony of Luis Martinez, the victim. (Martinez subsequently recanted his perjury and, in so doing, admitted that all the eye witnesses who testified on behalf of the state agreed to perjure themselves as well). The state offers nothing with respect to the perjury committed by the other witnesses. We find the state’s argument on this issue to be utterly devoid of merit.
For the reasons previously expressed and upon the authorities cited, this case is reversed and remanded for a new trial.
. See Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982) and cases cited.
. Luis Martinez, the victim, admitted that he committed perjury during the course of the trial.
.The defendant had no prior criminal record (assuming arguendo that it was an appropriate issue).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994)…prosecutor’s “free man” comment. It is improper for a prosecutor to tell or to infer to jurors that it is their duty to convict the accused for the good of society. See Alvarez v. State, 574 So. 2d 1119, 1120-1121 (Fla. 3d DCA 1991); Gomez v. State, 415 So. 2d 822, 823 (Fla. 3d DCA 1982). Here, the prosecutor commented: “If the defendant walks out of here a free man today, that’s your decision,” and, “Now, does he walk out of this courtroom today laughing, or do you make him take responsibility for what he d…
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Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)…s been faced with a veritable torrent of cases which have similarly involved significant prosecutorial improprieties committed by assistant state attorneys in this district. E.g., Chapman v. State, 417 So. 2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So. 2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982); Harper v. State, supra; McMillian v. State, 409 So. 2d 197 (Fla. 3d DCA 1982); Ruiz v. State, supra; Porter v. State, 386 S…
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Edwards v. State, 428 So. 2d 357 (Fla. 3d DCA 1983)…te, and unethical. See Williams v. State, 425 So. 2d 591 (Fla. 3d DCA 1982); Hines v. State, 425 So. 2d 589 (Fla. 3d DCA 1982); Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982); Chapman v. State, 417 So. 2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So. 2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982); Harper v. State; McMillian v. State, 409 So. 2d 197 (Fla. 3d DCA 1982); see generally ABA Standards for Criminal Justice, 3-5.8 (1980). When it is made to appear that a prosecu…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Gaetano Modica, 663 F.2d 1173 (2d Cir. 1981)
- McMILLIAN v. State, 409 So. 2d 197 (Fla. 3d DCA 1982)
- Harper v. State, 411 So. 2d 235 (Fla. 3d DCA 1982)
- Elvis Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982)