LEONARD HINES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's closing argument comment was so egregious that it compelled reversal, and the evidence was not so overwhelming as to justify overlooking the error.
[1] A new ground for objection to evidence may not be raised for the first time on appeal when an objection was made on a different ground at trial.
[2] A prosecutor's closing argument that urges the jury to return a verdict to send a message to the criminal community regarding violence is reversible error.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery and sentenced under the Youthful Offender Act. He appealed, raising several issues including prosecutorial miscondu…
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FERGUSON, Judge.
This appeal is taken from a judgment of conviction for robbery after which appellant was sentenced under the Youthful Offender Act. The contentions here are: (1) the court should have conducted an inquiry after appellant made a prima facie showing that the state was using its peremptory challenges to systematically exclude black jurors, (2) the prosecutor’s comments in closing argument were highly improper and prejudicial, (3) the court’s admonition to the state attorney in the presence of the jury was prejudicial, (4) by granting a state motion in limine the court deprived appellant of the benefit of exculpatory testimony from a credible witness.
We dispose of each point briefly in reverse order. First, at trial appellant opposed the motion in limine on the grounds that the statement was admissible as a res ges-tae exception to the hearsay rule. The court properly overruled the objection. Here it is argued for the first time that the statement should have been admitted to show that a co-defendant, who pled guilty and who was called as a defense witness, contrary to what the state sought to establish, did not recently fabricate his testimony that the appellant was not a participant in the offense. § 90.801(2)(b), Fla.Stat. (1981). The point is not preserved for review. When an objection is made on one ground at trial, no new or different ground may be considered on appeal. Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982) and cases collected therein.
Second, the question posed by the prosecutor to a police witness, “What was your reason for dismissing the one person at the scene”, may have been, as argued by appellant, designed to elicit an inadmissible identification of appellant based on an anonymous source. But if there was prejudice, which we doubt, it emanated not from the court’s admonition of the prosecutor to “be careful ... on the issue of hearsay and other matters ... ”, but from the question itself.
Third, we have on several occasions very recently been required to reverse convictions based on prosecutorial misconduct. This is another case that was tried during the same period in which overzealousness appears to have been the rule rather than an exception. The comment complained of herein also requires reversal:
Q. Mr. Baer [Prosecutor]: Ladies and gentlemen, I am going to close on this thought now: I am asking you, here to return a verdict in this ease that you can feel good about it and be proud of. I am asking you to tell the community that you are not going to tolerate the violence that took place in Sewer Beach.
[Defense Counsel]: Objection. That is totally improper and I move to strike it.
THE COURT: It shall be sustained.
[Prosecutor]: There isn’t any sympathy—
[Defense Counsel]: Your Honor, my I approach the bench?
THE COURT: Yes, sir. [Defense Counsel]: The defense moves for a mistrial.. ..
THE COURT: Your motion is denied.
The remark, an impassioned call to the jury to not only determine the guilt or innocence of the accused based on the evidence presented but to send a message to the criminal community regarding violence in general, is so egregious that reversal is compelled. United States v. Modica, 663 F. 2d 1173 (2d Cir.1981); Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982), Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982); 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). We do not find the evidence so overwhelming so as to justify overlooking the error. Finally, having already determined that the conviction must be reversed and the defendant accorded a new trial, we need not address the remaining issue: Whether the state’s use of its peremptory challenge is beyond court scrutiny, and if not, whether on this record appellant made a prima facie showing that the state used its peremptory challenges to impermissibly discriminate against a racially cognizable group.1
Reversed and remanded for a new trial.
. Appellant alleges that the following facts make for a prima facie showing of discrimination: (1) the defendant is black and the victims white, (2) the state used four of its six peremptory challenges to exclude all blacks seated as prospective jurors, (3) the sole remaining black in the venire was seated as a prospective alternate, but was also excluded peremptorily without examination.
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Cited By (17 total)
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Edwards v. State, 428 So. 2d 357 (Fla. 3d DCA 1983)…onted with a rash of such arguments over the past year. Counsel have been consistently admonished, and the arguments have been condemned as unfair, intemperate, 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; McM…
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Bass v. State, 547 So. 2d 680 (Fla. 1st DCA 1989)…o the jury to convict the defendant for a reason other than his guilt of the crimes charged. Such comments have been held to constitute reversible error in a long line of cases. See Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984); Hines v. State, 425 So. 2d 589 (Fla. 3rd DCA 1982); Boatwright v. State, 452 So. 2d 666 (Fla. 4th DCA 1984); Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988). We are, of course, aware that wide latitude is accorded a prosecutor during closing argument and that the control of…
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Williams v. State, 425 So. 2d 591 (Fla. 3d DCA 1982)…was convicted of the armed robbery of a supermarket. In treating his sole point on appeal, we once more find, as we have recently with wearying repetitiveness, see Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982), and cases cited; Hines v. State, 425 So. 2d 589 (Fla. 3d DCA 1982), that the prosecutor’s final argument was infected with error. Statements like the one made below — which was exacerbated by being substantially repeated with the apparent approval of the trial court — -that if Williams were found…
Previewing 3 of 17 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)
- Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)
- Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982)
- 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)