DONNIE BULLARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1983-07-26
No. 82-777
Before NESBITT, BASKIN and FERGUSON, JJ.
436 So. 2d 962 Florida District Court of Appeal, Third District (1983) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Donnie Bullard was convicted of aggravated assault and armed robbery, but the Florida District Court of Appeal reversed because the prosecutor improperly used a 'golden rule' argument during closing statements, asking jurors to imagine themselves as the robbery victim. Although the trial contained multiple instances of prosecutorial misconduct, most were not preserved for appeal due to defense counsel's failure to object.


Holding

The court held that the prosecutor's 'golden rule' argument violated Bullard's right to a fair trial and requires reversal. The issue was properly preserved for appeal because defense counsel made a timely objection and the trial judge unequivocally overruled it. However, other instances of prosecutorial misconduct do not warrant reversal because defense counsel failed to preserve those issues through contemporaneous objection.


Headnotes

[1] A "golden rule" argument, asking jurors to place themselves in the victim's position, violates a defendant's right to a fair trial by impartial jurors.

[2] A timely objection to improper prosecutorial comments, unequivocally overruled by the judge, preserves the issue for appellate review.

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Key Quotes

“By advancing a 'golden rule' argument, that is, asking the jurors to place themselves in the victim's position, the prosecutor violated defendant Bullard's right to a fair trial by impartial jurors.”

Establishes that the golden rule argument is per se improper and violates the defendant's right to a fair trial

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Facts & Procedural History

Bullard was tried for aggravated assault and armed robbery. The prosecution presented three eyewitness identifications. During closing argument, the p…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

Grossly improper prosecutorial comments and conduct alleged to have tainted Bul-lard’s trial for aggravated assault and armed robbery are the subjects of this appeal. Although the trial was replete with improper comments and conduct by the prosecutor, defense counsel’s failure to preserve the record for appellate review precludes reversal on all but one ground. This fatal error occurred when the court permitted the state to present a “golden rule” argument during closing remarks. Barnes v. State, 58 So. 2d 157 (Fla.1952); Peterson v. State, 376 So. 2d 1230 (Fla. 4th DCA 1979); Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976). See Wheeler v. State, 425 So. 2d 109 (Fla. 1st DCA 1982).

In response to the defense of misidentification, the prosecutor urged:

They talk I.D. problem, ladies and gentlemen, ... Imagine yourselves as coming out of a club, imagine some individual coming up to you, pointing a gun in your face like this, tell me what you see, give me your money, give me watches, give me everything you got—

MS. KOONCE: Objection—

MR. DAVIS: What did you see when he’s taking off—

MS. KOONCE: Objection.

THE COÚRT: Grounds?

MS. KOONCE: I think the Prosecutor is becoming a bit over the closing argument.

THE COURT: Overruled.

MR. DAVIS: You see yellow, you see a nickel plated gun pointed at your face and all you can say is take it easy. You’re not interested in wallets, you’re not interested in the hat and guitar, you’re interested in your life because that’s the most important thing to you right then and there.

By advancing a “golden rule” argument, that is, asking the jurors to place themselves in the victim’s position, the prosecutor violated defendant Bullard’s right to a fair trial by impartial jurors. See Lucas. We find that this issue has been preserved for appellate review under the “contemporaneous objection rule” set forth in Clark v. State, 363 So. 2d 331 (Fla.1978). The record reflects that defense counsel made a timely objection to the improper remarks and that the trial judge immediately overruled the objection. In Simpson v. State, 418 So. 2d 984, 986 (Fla.1982), the court observed:

[Wjhere clearly a timely objection to the improper comment was made by defense counsel, and where the judge unequivocally and without hesitation overruled the objections, the issue of the admission of such testimony and comments before the jury is properly preserved for appeal.

Bullard asserts as error several other instances of prosecutorial misconduct; as we noted earlier, none of these comments or actions warrants reversal because defense counsel failed to preserve the improprieties for appellate review. For example, during another portion of closing argument, the prosecutor improperly stated:

From that stand Manuel Guarch and Rolando Vasquez identified this creature, this thing, this person who deprived these people of their rights ....

This man has lied before and he lies to you today. He’s been convicted nine times, that’s too many, once was too many. Surely we have pardoned him enough There is no room for sympathy, there is no room for mercy, there’s only room for finding this man guilty of the crime as charged.

Although these comments impermissibly placed Bullard’s character in issue, see, e.g., Lewis v. State, 377 So. 2d 640 (Fla.1979); Albright v. State, 378 So. 2d 1234 (Fla. 2d DCA 1979); Donaldson v. State, 369 So. 2d 691 (Fla. 1st DCA 1979), defense counsel offered no objection.

As to the prosecutor’s specific acts of misconduct, defense counsel reminded the jury during closing argument, without contradiction by the state, that the prosecutor had “gone to great extent to put on the shirt, to point the gun at you, to point the gun around the courtroom .... ” However, the record fails to reflect the specific gestures at the precise time they occurred. Furthermore, neither objection by defense counsel nor motion for mistrial or curative instruction appears on the record with regard to this conduct.

No public interest is served when the state seeks to obtain a conviction by injecting reversible error into a trial when it knows or should know that the error may later require reversal. See DeFoor, If Oratory Comes, Can Reversal Be Far Behind?, 57 Fla.Bar.J. 505 (1983). The reality of the situation is that the public is subjected to the additional expense of retrying cases when one trial should be adequate, if conducted properly.

Defense counsel did object to the admission of hearsay in the form of statements of an absent witness presented to the jury through the testimony of a police officer. That testimony was inadmissible. Driessen v. State, 431 So. 2d 692 (Fla. 3d DCA 1983); Cox v. State, 394 So. 2d 237 (Fla. 1st DCA 1981). Although the trial court erred in admitting the testimony, the error must be deemed harmless in light of the three eyewitness identifications presented to the jury.

For these reasons we hold that the record supports-reversal based on the prosecutor’s improper “golden rule” argument. We reverse solely on that ground.

Reversed and remanded for a new trial.

1. Defense counsel entered into a stipulation with the state that the jury could consider the fact that the defendant had nine previous convictions. Bullard later testified, however, that he had been convicted on only five prior occasions. The jury was told he had nine convictions, without objection.

2. It is not clear how nine convictions can be equated with pardons.

Concurrence
FERGUSON, Judge

FERGUSON, Judge

(concurring).

Whether the errors complained of were preserved for review by timely and informative objection is not, in my opinion, a crucial issue. The prosecution of the case was, in totality, so grossly improper as to render the trial fundamentally unfair. On the record before us reversal would have been required even if defense counsel had failed to interpose a single objection.


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Citator

Cited By

  • Shaara v. State, 581 So. 2d 1339 (Fla. 1st DCA 1991)
    …position, Peterson v. State, 376 So. 2d 1230 (Fla. 4th DCA 1979), nor to think how they would feel if the crime happened to them, Lucas v. State, 335 So. 2d 566 (Fla. 4th DCA 1979), cert. denied, 386 So. 2d 642 (Fla.1980). See also Bullard v. State, 436 So. 2d 962 (Fla. 3d DCA 1983), rev. denied, 446 So. 2d 100 (Fla.1984). Shaara complains of the following comments by the prosecutor: It would appear that the only thing he forgot maybe in the whole story is at the end of the time he gave her a hundred dollar…
  • Simmons v. Baptist Hosp. OF Miami, Inc., 454 So. 2d 681 (Fla. 3d DCA 1984)
    …r, after the trial court ovérruled plaintiff’s objections thereto, it was unnecessary to move for a mistrial. See Simpson v. State, 418 So. 2d 984, 986 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Bullard v. State, 436 So. 2d 962, 963 (Fla. 3d DCA 1983), pet. for review denied, 446 So. 2d 100 (Fla.1984). Second, the probative value of the evidence, even if marginally relevant, was entirely outweighed by its unfairly prejudicial character; moreover the evidence did not consti…
  • Bell v. State, 595 So. 2d 232 (Fla. 3d DCA 1992)
    …e witness to testify in court. The officer’s testimony regarding the statements of a nontestifying witness was obviously hearsay, and was improperly admitted by the trial court. See Davis v. State, 493 So. 2d 11 (Fla. 3d DCA 1986); Bullard v. State, 436 So. 2d 962 (3d DCA 1983), review denied, 446 So. 2d 100 (Fla. 1984); Postell v. State, 398 So. 2d 851 (Fla. 3d DCA), review denied, 411 So. 2d 384 (Fla. 1981). Contrary to the State’s argument, the State has failed to carry its burden of showing that these er…

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