MOSES K. MURRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Murray was convicted of possession of a firearm by a felon and carrying a concealed weapon. The Fourth District Court of Appeal reversed the conviction for possession of a firearm by a felon due to prosecutorial misconduct in closing argument, but affirmed the conviction for carrying a concealed weapon.
The court reversed the conviction for possession of a firearm by a felon because the prosecutor's closing argument violated the Code of Professional Responsibility by asserting personal opinions regarding witness credibility and making unprovoked inflammatory remarks. The court affirmed the conviction for carrying a concealed weapon, finding the appellant's argument on that charge meritless.
[1] A prosecutor's closing argument violates ethical rules when it contains accusatory language not provoked or justified by defense counsel's argument.
[2] A prosecutor's closing argument that suggests a defendant is lying to the court to avoid prison constitutes unprofessional advocacy.
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“I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.”
The prosecutor's inflammatory closing argument that violated the Code of Professional Responsibility by asserting personal opinion about the defendant's credibility and character.
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Join FLexlaw to unlock all legal intelligenceMurray was charged in a five-count information including possession of a firearm by a felon, carrying a concealed weapon, aggravated assault, battery,…
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GLICKSTEIN, Judge.
This is an appeal from an amended judgment of guilty for possession of a firearm by a felon and carrying a concealed weapon. We reverse the part of the amended judgment affecting the first charge and remand for new trial; but we affirm the part dealing with the second charge because we find appellant’s argument directed thereto to be meritless.
Appellant was charged in a five-count information for the above crimes as well as aggravated assault, battery and carrying a concealed firearm. The charge of possession of a firearm by a felon was severed from the other charges and tried first to a jury. It is in this initial trial that we perceive the harmful error which compels reversal.
At the conclusion of the evidence, appellant’s counsel had preserved his right to sandwich the state’s closing argument. We have reviewed the initial argument by appellant’s counsel and find it to be temperate. In his discussion of reasonable doubt, he remarked with respect to one witness: “There is a lot of reasonable doubt there as to the credibility of her testimony.” While this remark explicitly refers to the witness’ credibility, it skirts Florida Bar Code of Professional Responsibility DR 7-106(C)(4) (“a lawyer shall not ... [ajssert his personal opinion ... as to the credibility of a witness”) and is phrased in such a manner— when viewed in the light of his remaining argument — that it plainly should not have goaded the prosecutor into accusatory language.1
Unfortunately, however, when the prosecutor undertook his closing argument he warmed to the task by asking the jury to consider whether appellant’s testimony was worthy of any belief. He then turned up the heat in one final blast:
I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.
This last comment, neither provoked nor justified, was a plain violation of the Code of Professional Responsibility.2 The crimi nal justice system cannot function without zealous prosecution, nor with unprofessional advocacy — whether the latter be in the form of indifference on the one hand or intemperate conduct on the other. One cannot successfully prosecute without fire in the belly nor with its misuse.
DELL and WALDEN, JJ., concur. . In contrast, see Broge v. State, 288 So. 2d 280 (Fla. 4th DCA), cert. denied, 295 So. 2d 302 (Fla.), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974), wherein defense counsel’s most abusive comments provoked a restrained remark by the prosecutor which was held to be fair rebuttal.
. See Dukes v. State, 356 So. 2d 873, 875-76 (Fla. 4th DCA 1978), in which this court granted a new trial, noting:
The prejudice occurring from the State’s improper cross-examination of appellant and his eyewitness was further compounded in the prosecutor's closing argument relative to witness Blakley:
“Now, he brought in this Jewell Blakley, admittedly a prostitute, admittedly a woman who has sold heroin to the same agent, A.W. Jackson, at the same location, 524 West Jackson Street, here in Orange County, and a woman who has admittedly been convicted of crimes so many times that she can’t even remember. And I tell you, ladies and gentlemen, that she is an incredible witness, and she is not worthy of your belief. She is a liar, clear and simple.” (T. 192-193)
The prosecutor’s parting shot on the question of the credibility of the State’s witnesses versus the appellant’s was:
“Now, you heard our case, and then you heard his case. You heard his witnesses, his prostitute, heroin pusher, convicted so many times she cannot count; who would think nothing of getting up on the stand and telling a lie for her buddy, Fred Dukes.
“You heard his testimony, and you heard his criminal convictions....” (T. 227) Thus, the State clearly violated the rules relative to the impeachment of witnesses for pri- or criminal convictions and then laced its closing argument with stinging comment based upon the improper evidence so adduced.
Finally, the State’s closing argument was also subject to criticism in that it violated Canon 7, DR7-106 of the Code of Professional Responsibility. In several instances the prosecutor asserted his personal opinion as to the credibility of witnesses.
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State v. Murray, 443 So. 2d 955 (Fla. 1984)…[*956] SHAW, 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…
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Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985)…, 859-60 (5th Cir.1967) cited in Bates v. State, 422 So. 2d 1033 (Fla. 3d DCA 1982). [*10] As to contention (2), expression of personal beliefs by a prosecutor is improper. See, e.g., O’Callaghan v. State, 429 So. 2d 691 (Fla.1983); Murray v. State, 425 So. 2d 157 (Fla. 4th DCA 1983), quashed on other grounds, 443 So. 2d 955 (Fla.1984); Florida Bar Code of Professional Responsibility DR7-106(C)(4). A prosecutor’s role in our system of justice, when correctly perceived by a jury, has at least the potential for…
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Boatwright v. State, 452 So. 2d 666 (Fla. 4th DCA 1984)…rict as well as The Florida Bar some suggestions which have come to mind as a result of the decision of the Supreme Court of Florida in State v. Murray, 443 So. 2d 955 (Fla.1984) and (2) to express some observations as the author of Murray v. State, 425 So. 2d 157 (Fla. 4th DCA 1983), which was subsequently quashed in State v. Murray. The suggestions are these: 1. Prosecutors should now, more than ever, realize that when they violate an individual’s constitutional rights, they not only may be admonished by…
Authorities Cited
- Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978)
- Broge v. State, 288 So. 2d 280 (Fla. 4th DCA 1974)
- McNeal v. California, 419 U.S. 845 (U.S. 1974)
- Comcowich v. United States, 419 U.S. 845 (U.S. 1974)
- Broge v. State, 295 So. 2d 302 (Fla. 1974)
- Ford v. State, 295 So. 2d 302 (Fla. 1974)