LEONARD TRINCA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leonard Trinca was convicted of trafficking in methaqualone and battery on a law enforcement officer. The appellate court reversed and remanded for a new trial due to prosecutorial misconduct, specifically the prosecutor's improper comments during closing argument implying that the defendant had a burden to produce witnesses and suggesting that a key witness was unavailable to the prosecution.
The court reversed and remanded for a new trial because the prosecutor's comments constituted clear prosecutorial misconduct. The prosecutor improperly implied that Susan was unavailable to the prosecution and suggested the defendant bore the burden of producing witnesses to establish innocence, which violates the defendant's right to due process.
[1] A prosecutor commits misconduct by questioning a defendant about a statement made by a witness the State knows will not be called to testify, especially when the witness…
[2] A prosecutor commits misconduct by arguing to the jury that the defendant had the burden of producing witnesses to show his innocence.
Previewing 2 of 4 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“Clearly, Susan and her statement should not have been interjected into this case, and it is obvious that appellant was prejudiced by it.”
The court's determination that the prosecutor's introduction of Susan and her statement was improper and prejudicial to the defendant.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was charged with trafficking in cannabis, trafficking in methaqualone, two counts of battery on a law enforcement officer, and possession of…
The full statement of facts, procedural history, and disposition for this case are member content.
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BERANEK, Judge.
Appellant was charged with trafficking in cannabis, trafficking in methaqualone, two counts of battery on a law enforcement officer, and possession of diazepam. He was found guilty of trafficking in methaqualone and one count of battery on a law enforcement officer. He raises six points on appeal, one of which concerns prosecutorial misconduct and mandates reversal.
Susan, the daughter of appellant’s wife, was a drug user with many arrests. She was obviously involved in the events leading up to appellant’s arrest. During the investigation, a statement was taken by the police officers from Susan. The State never subpoenaed Susan to appear at trial and the State knew she was not to be called as a defense witness. However, during cross-examination of appellant, the State asked the following questions:
Q. Were you aware that Susan gave a statement to the police at the time of this incident? A. Am I aware of it? A. Uh-Uh. A. Yes. Q. And are you aware_ A defense objection was made to prevent the State from elaborating on the statement. The prosecutor apparently recognized the impropriety of the question in the following colloquy:
The Court: Do you have a response to the objection? Prosecutor: No response. The Court: Is there going to be a hearsay problem or not? Prosecutor: No. The Court: Why not? Prosecutor: I will withdraw the question. Unfortunately, the subject of Susan and her statement was not so easily withdrawn. Both the prosecutor and defense counsel bantered Susan’s name about during their arguments to the jury and in his final argument, the prosecutor argued to the jury: “Then I would have loved to put the stepdaughter on if I could ... he has the same subpoena power that I do. How did he get the other witnesses in here?” (Emphasis supplied). Not only did the prosecutor imply that the witness Susan was unavailable to him, he then went on to imply that the appellant had the burden of producing witnesses to show his innocence. After the above comment, appellant immediately moved for a mistrial which was denied and then moved for á curative instruction which was also denied.
Clearly, Susan and her statement should not have been interjected into this case, and it is obvious that appellant was prejudiced by it. During deliberations, the jury sent the trial court two questions, one being, “What was Susan’s statement to the police?”, and the second being, “Why wasn’t Susan subpoenaed?” This is not a situation where we must speculate on whether the error was harmless. We reverse based on Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983). In that ease, the State commented in closing argument on the failure of the defendant to call defendant’s daughter as a witness. It had been demonstrated during the trial that the defendant’s daughter was present when the alleged crime occurred and was available to testify. The Second District Court held that it was clearly improper for the State to comment on the defense’s failure to call witnesses, citing Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969). We remand for a new trial.
REVERSED AND REMANDED.
DELL and WALDEN, JJ., concur.
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Citator
Cited By
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Huff v. State, 544 So. 2d 1143 (Fla. 4th DCA 1989)…osing argument, the prosecutor made it clear that, in his opinion, the defense was a fabrication. This is inappropriate. See Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA 1987), Waters v. State, 486 So. 2d 614 (Fla. 5th DCA 1986), and Trinca v. State, 446 So. 2d 719 (Fla. 4th DCA 1984). Finally, it was error to admit testimony that the defendant carried a gun to work. Guns had nothing to do with the crime charged. See Jackson v. State, 522 So. 2d 802 (Fla.1988). REVERSED AND REMANDED. HERSEY, C.J., and GL…
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Benfils George v. State, 539 So. 2d 21 (Fla. 5th DCA 1989)…e, 491 So. 2d 1129 (Fla.1986); Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983), approved in part, 454 So. 2d 560 (Fla.1984); Araujo v. State, 452 So. 2d 54 (Fla. 3d DCA 1984); Porter v. State, 347 So. 2d 449 (Fla. 3d DCA 1977); Trinca v. State, 446 So. 2d 719 (Fla. 4th DCA 1984); Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984), rev. denied, 456 So. 2d 1182 (Fla.1984).…
Authorities Cited
- Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969)
- Michaels v. State, 429 So. 2d 338 (Fla. 2d DCA 1983)