RICHARD N. NAZARETH, M.D., APPELLANT,
v.
CAROLYN SAPP AND JAMES SAPP, HER HUSBAND, APPELLEES
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Dr. Richard Nazareth appealed a trial judge's grant of a new trial following a jury verdict in his favor, arguing the trial court erred in finding defense counsel engaged in misconduct. The appellate court affirmed the new trial order, holding that cumulative prejudicial conduct by defense counsel, even if some remarks went unobstructed, can warrant a new trial when it pervades the trial and impairs fair consideration of the evidence.
The trial court properly granted a new trial because defense counsel's cumulative prejudicial conduct—including improper emotional appeals, unsupported assertions of collusion, subornation of perjury, extortion, and attacks on plaintiffs' litigiousness—was so extensive in its collective import that it pervaded the trial and gravely impaired the jury's calm and dispassionate consideration of the evidence, regardless of the absence of timely objections to some remarks.
[1] A new trial may be granted when a jury's verdict is influenced by matters outside the record, such as the personal opinions of counsel.
[2] Improper appeals by counsel to a jury's emotions and prejudices, when cumulatively pervasive, can result in a miscarriage of justice warranting a new trial.
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Join FLexlaw to unlock all legal intelligence“if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, a new trial should be awarded regardless of the want of objection.”
Establishes the legal standard for granting a new trial based on cumulative prejudicial conduct, requiring consideration of the collective effect rather than individual objections to each remark.
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial that resulted in a defense verdict for Dr. Nazareth, the trial judge granted plaintiffs' motion for a new trial based on the ju…
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COBB, Chief Judge.
Following a jury trial resulting in a defense verdict, the trial judge granted the plaintiffs’ motion for new trial based upon his perception of trial misconduct by defense counsel. The trial court found:
That a new trial should be granted in this cause on the grounds (1) that the jury’s verdict was influenced by matters outside the record; including the personal opinions of defense counsel; (2) the improper appeals of counsel for the Defendant to the jury’s emotions and prejudices which so permeated the jury’s decision by its cumulative effects to result in a miscarriage of justice; (3) that this Court erred in not sustaining the objection of Plaintiffs to the “afflication of litigiousness” argument of defense counsel, and failing to admonish the jury to disregard any such appeal; and (4) the totally unsupported assertions and closing argument by defense counsel of false issues, including specifically an assertion of collusion, subornation of perjury and extortion.
This determination is based upon the Court’s personal observation of the trial and the conduct of counsel for five (5) days made in the face [of] countless admonitions and warnings to counsel to conduct the trial with propriety.
We have reviewed the record and find that it amply supports the findings of the trial judge and his order granting a new trial. It is true, as argued on appeal, that many of the prejudicial remarks made by Attorney Handley in closing argument escaped objection below. But the law of Florida is to the effect that “if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, a new trial should be awarded regardless of the want of objection.” [Emphasis in original.] Tyus v. Apalachicola Northern Railroad Co., 130 So. 2d 580, 587 (Fla.1961).
AFFIRMED.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.
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State v. Townsend, 635 So. 2d 949 (Fla. 1994)…review that an accused is denied the right to due process is fundamental); Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989) (cumulative effect of the errors in child sexual abuse case was so fundamental as to require reversal); Nazareth v. Sapp, 459 So. 2d 1088 (Fla. 5th DCA 1984); Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978). This is especially true in light of the erroneously admitted testimony of the psychologist, which, under the circumstances, cannot be considered harmless. Other than the hearsa…
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Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)…); Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991); Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA 1992), rev. dismissed, 606 So. 2d 1164 (Fla.1992); Stokes v. Wet’N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Nazareth v. Sapp, 459 So. 2d 1088 (Fla. 5th DCA 1984). In the instant ease, closing argument by counsel for the plaintiffs began with an unctuous tribute to the character of the plaintiff and his testimonial observation that counsel “had heard nothing but wonderful things about” th…
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Marga R. Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993)…extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury....” Tyus v. Apalachicola Northern R.R. Co., 130 So. 2d 580, 587 (Fla. [*5] 1961); Nazareth v. Sapp, 459 So. 2d 1088 (Fla. 5th DCA 1984). Silva complains, inter alia, about the following comments made during Nightingale’s closing argument: (1) While referring to what Silva had said to one of her treating physicians, counsel stated, “I don’t believe that.” (2) W…
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- Tyus v. Apalachicola N. R.R. Co., 130 So. 2d 580 (Fla. 1961)