ORESTES RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reject the defendant’s contention that he was entitled to the entry of a judgment of acquittal on the ground that the evidence was insufficient to sustain his first-degree murder conviction. We also reject his alternative contention that the prosecutor’s misstatement of the law during closing argument — “If you believe [the defendant’s story] is not credible and if you believe he took the stand and didn’t tell the truth, he is guilty of first degree murder” —could only be remedied by the grant of the defendant’s request for a mistrial. We conclude instead that the harm of the unquestionably erroneous remark was capable of being cured by an instruction to the jury, and although the instruction given— namely, to disregard the remark — is arguably less than adequate, if the defendant was dissatisfied with the instruction, it was his burden to request a more adequate one.
Affirmed.
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Clewis v. State, 605 So. 2d 974 (Fla. 3d DCA 1992)…truth ... [a]nd that all of [the State’s witnesses] are liars and fools” held to be such a misstatement of law as to constitute fundamental error), appeal denied, 122 Ill.2d 583, 125 Ill.Dec. 226, 530 N.E. 2d 254 (Ill.1988). In Rodriguez v. State, 493 So. 2d 1067 (Fla. 3d DCA 1986), we held that a similar misstatement of the law was “unquestionably erroneous.” We affirmed the conviction in Rodriguez because an objection to the comment had been sustained and a curative instruction was given which was obviousl…
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Servis v. State, 855 So. 2d 1190 (Fla. 5th DCA 2003)…prosecutor’s statement, under section 316.193, Florida Statutes, to be guilty of driving with an unlawful blood alcohol level, Servis must have had a blood alcohol level of .08 while driving or in physical control of the car, see Rodriguez v. State, 493 So. 2d 1067 (Fla. 3d DCA 1986), and it was error for the trial court to overrule the defense’s objections. Further, the state commented on Servis’s guilt: Now, we also talked about in voir dire that, to be impaired, and you all agreed that you don’t need to b…
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Dania Antwan Covington v. State, 842 So. 2d 170 (Fla. 3d DCA 2003)…stated the burden. However, under the analysis in Gore, a closing argument is objectionable if it asks the jury to determine the issue of guilt on the basis of whether the defendant (or a witness) was lying. Id. at 1200. See also Rodriguez v. State, 493 So. 2d 1067 (Fla. 3d DCA 1986). In the present case, the prosecutor began her closing argument by saying that there was one element of the crime which remained to be proven: whether the defendant possessed a firearm. She then stated that this boiled down to wh…
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