ERNESTO RICARDO SALAZAR-RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Salazar-Rodriguez appealed his aggravated battery conviction challenging three prosecutorial improprieties at trial. The Florida District Court of Appeal reversed and remanded for a new trial, finding that the prosecutor's comments on appellant's failure to call witnesses, improper references to the Mariel boatlift, and inflammatory remarks to the jury constituted reversible error.
The court held that all three prosecutorial improprieties constituted reversible error. The court found it particularly improper for the prosecutor to place testimony before the jury that was never elicited because witnesses were not called to testify, reversing the conviction and remanding for a new trial.
[1] A prosecutor's comments suggesting a defendant's refugee status are improper and prejudicial.
[2] A prosecutor improperly testifies by presenting to the jury the content of testimony that witnesses not called by the defense would have given.
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Join FLexlaw to unlock all legal intelligence“By placing before the jury testimony that was never elicited because the witnesses were not called to testify, the state itself testified. Such conduct is totally improper.”
Establishes that the prosecutor's description of uncalled witnesses' potential testimony constituted improper state testimony
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with aggravated battery with a deadly weapon related to an incident in Hialeah on September 22, 1981. During trial, the prosecut…
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BASKIN, Judge.
Appellant complains of three court-sanctioned improprieties committed during his trial. They include: (1) the prosecutor’s thinly veiled attempt to suggest to the jury that appellant was a Mariel boatlift refugee by tracking his moves from Key West in May of 1980 to Arkansas, to Atlanta and then back to Miami; (2) the prosecutor’s argument to the jury that “[I]f you all condone what happened in Hialeah on September 22, 1981, well there is the front door. You can all walk them right through that front door.”; and (3) the prosecutor’s description during closing argument of the testimony that witnesses not called by the defense would have given had they testified. Finding that the errors have been preserved for appellate review and that appellant’s challenges have merit, we reverse.
Our review of the record reveals that “the trial was so fraught with errors that reversal could be bottomed on a multitude of them.” Kirk v. State, 221 So. 2d 40, 24 (Fla. 4th DCA 1969). We base our reversal primarily upon the state’s comments on appellant’s failure to call witnesses. Michaels v. State, 429 So. 2d 338 (Fla. 4th DCA 1983); Kirk. By placing before the jury testimony that was never elicited because the witnesses were not called to testify, the state itself testified. Such conduct is totally improper. See, e.g., Clinton v. State, 53 Fla. 98, 43 So. 312 (1907); Bradham v. State, 41 Fla. 541, 26 So. 730 (1899); Thompson v. State, 318 So. 2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 465 (Fla. 1976).
Next, we note that during argument in support of the state’s motion to limit questioning of its witnesses the prosecutor stated that questions about the circumstances surrounding the witnesses’ arrival in Florida should be avoided because:
[IJt’s highly prejudicial to them because of the unfortunate reputation that’s come about throughout the community of all people from the Mariel boatlift....
It is just as prejudicial to point out that appellant arrived from Mariel during the boatlift as it is to reveal that fact about prosecution witnesses. The trial court’s ruling that counsel could not refer to any witness, victim or to the defendant as a Mariel refugee but could inquire regarding the date of arrival in the United States did not authorize the devious tactics employed by the state.
The final basis for reversal is the comment by the prosecutor:
Because they figured that you all and rightfully so, would be the most concerned about the kind of activity that goes on in this county, and if you all condone what happened in Hialeah on September 22, 1981, well there is the front door. You can all walk them right through that front door, (emphasis added)
This comment differs little from the comment in McMillan v. State, 409 So. 2d 197 (Fla. 3d DCA 1982) and was neither proper nor harmless error. For these reasons we reverse appellant’s conviction of aggravated battery with a deadly weapon and remand the cause for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987)…secutor refers to testimony or items not in evidence, e.g., Vaczek v. State, 477 So. 2d 1034 (Fla. 5th DCA 1985); Williamson v. State, 459 So. 2d 1125 (Fla. 3d DCA 1984); Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984); Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983), or where a prosecutor indulges in personal attacks upon an accused, his defense, or his counsel, e.g., Waters v. State, 486 So. 2d 614 (Fla. 5th DCA), rev. denied, 494 So. 2d 1153 (Fla.1986); Ryan v. State, 457 So. 2d 1084 (Fla.…
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Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983)…secutor’s comments may have led the jury to believe that appellant had the burden of proving his innocence. Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978). See also Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983). For these reasons this cause is reversed and remanded for a new trial.…
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Terrazas v. State, 696 So. 2d 1309 (Fla. 2d DCA 1997)…have been uniformly condemned by the courts of this state. See Perez v. State, 689 So. 2d 306 (Fla. 3d DCA 1997); Reynolds v. State, 580 So. 2d 254 (Fla. 1st DCA 1991); George v. State, 539 So. 2d 21 (Fla. 5th DCA 1989); Salazar-Rodriguez v. State, 436 So. 2d 269 (Fla. 3d DCA 1983). These tactics have been found to be fundamental error and reversal has occurred when there has been a failure to object and move for mistrial. See Perez; Reynolds. We need not consider whether fundamental error occurred here. Ter…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Buck Clinton and Edward Clinton v. State, 53 Fla. 98 (Fla. 1907)
- Thompson v. State, 318 So. 2d 549 (Fla. 4th DCA 1975)
- McMILLIAN v. State, 409 So. 2d 197 (Fla. 3d DCA 1982)
- Bradham v. State, 41 Fla. 541 (Fla. 1899)
- Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983)