THE STATE OF FLORIDA, APPELLANT,
v.
LUCIA BERMUDEZ & JORGE JIMENEZ, APPELLEES

Fla. 3d DCA | 1987-11-17
No. 87-116
Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
515 So. 2d 421 Florida District Court of Appeal, Third District (1987) Positive Treatment
Cited by 4 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

Florida appeals from an order granting a new trial in a cocaine trafficking case, arguing that a prosecutor's closing argument comment was not so prejudicial as to require a new trial. The court reverses the new trial order, finding the comment was harmless in context and adequately cured by a jury instruction, while affirming the denial of the defendant's motion for judgment of acquittal.


Holding

The court held that the prosecutor's comment, read in context, did not warrant a new trial because it was intended to explain why narcotics transactions occur only in front of unrespectable people and therefore credible witnesses cannot be called, and any error was adequately cured by the trial court's instruction to disregard the comment. The court also held that sufficient evidence supported Jimenez's conviction for aiding and abetting the cocaine delivery.


Headnotes

[1] A prosecutor's comment in closing argument, when read in context, may be interpreted as explaining the practical limitations of presenting certain witnesses rather than a…

[2] A trial court's instruction to the jury to disregard a prosecutor's comment, coupled with sustaining a defense objection, may adequately cure any potential error arising…

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Key Quotes

“read in context, it is plain that the prosecuting attorney was, in effect, pointing out to the jury that narcotics transactions of this nature do not take place in front of respectable-type people, and that, accordingly, the state can't call such people as witnesses”

The court's interpretation of the prosecutor's comment as a rhetorical point about the nature of drug transactions rather than a factual assertion about other sales.

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Facts & Procedural History

Lucia Bermudez and Jorge Jimenez were prosecuted for trafficking in cocaine. An undercover police officer, Eladio Paez, testified that he conducted a …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the state from an order granting a motion for new trial filed by the defendants Lucia Bermudez and Jorge Jimenez in a prosecution below for trafficking in cocaine. The sole basis for the new trial order was a comment by the prosecuting attorney in his closing argument which, in the trial court’s view, was improper because it suggested to the jury that the defendants had sold cocaine on other occasions than the incident for which the defendants were on trial. We disagree and reverse based on the following briefly stated legal analysis.

First, the prosecuting attorney, in closing argument, replied to an argument made by one of the defense counsel in the case that the undercover police officer, who testified in the cause, was a liar. The prosecutor stated “I would love to bring to you rabbis and priests and nuns and school teachers to whom these people have sold cocaine, but I can’t do it.” A defense objection to this argument was sustained, the jury was instructed to disregard the comment, and the prosecuting attorney continued “If Eladio Paez [the undercover officer] had worked in a police uniform, if he was wearing a City of Miami police uniform, Lucia Bermude[z] wouldn’t have given him that cocaine.

The point is Eladio Paez doesn’t lie when he takes on an undercover capacity, there is no lie involved there; that’s his job.”

Second, read in context, it is plain that the prosecuting attorney was, in effect, pointing out to the jury that narcotics transactions of this nature do not take place in front of respectable-type people, and that, accordingly, the state can’t call such people as witnesses — not that the defendants had, in fact, sold narcotics to rabbis, priests, nuns and school teachers, as the comment literally states. Moreover, to the extent that the comment might have been taken literally, we think the trial court’s instruction to disregard this comment entirely, together with sustaining a defense objection thereto, adequately cured whatever error might have occurred. A new trial was not required based on this comment, and it was an abuse of discretion for the trial court to so find. See Williams v. State, 438 So. 2d 152, 153 n. 1 (Fla. 3d DCA), rev. dismissed, 443 So. 2d 981 (Fla. 1983); State v. Woodson, 330 So. 2d 152, 154 (Fla. 4th DCA 1976); Broge v. State, 288 So. 2d 280, 281 (Fla. 4th DCA), cert. denied, 295 So. 2d 302 (Fla.), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974).

This is also a cross appeal by the defendant Jorge Jimenez in which it is claimed that the trial court erred in denying his motion for judgment of acquittal at trial. We cannot agree because the state’s evidence at trial plainly established that defendant Jimenez aided and abetted the defendant Bermudez in the delivery of the requisite amount of cocaine to the undercover police officer herein as required by Sections 777.011 and 893.135, Florida Statutes (1985). See Brown v. State, 428 So. 2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Beasley v. State, 360 So. 2d 1275, 1277 (Fla. 4th DCA 1978).

The new trial order under review is reversed on the main appeal, the denial of Jimenez’ motion for judgment of acquittal is affirmed on the cross appeal, and the cause is remanded to the trial court with directions to impose sentence in this cause.

Reversed in part; affirmed in part; and remanded for sentencing.


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Citator

Cited By

  • Cabrera v. State, 576 So. 2d 1358 (Fla. 3d DCA 1991)
    …sceptible of a suggestion that defendant may be engaged in other uncharged criminal conduct. See Randolph v. State, 556 So. 2d 808, 809 (Fla. 5th DCA 1990); see generally Shorter v. State, 532 So. 2d 1110, 1111 (Fla. 3d DCA 1988); State v. Bermudez, 515 So. 2d 421, 422 (Fla. 3d DCA 1987). We conclude, however, that the comments complained of by defendant were harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).1 Defendant’s third point has merit. At the time of the offenses defendant was on probation…
  • Dean v. State, 639 So. 2d 1123 (Fla. 3d DCA 1994)
    …PER CURIAM. Affirmed. Craig v. State, 510 So. 2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); Ferguson v. State, 417 So. 2d 639 (Fla.1982); State v. Bermudez, 515 So. 2d 421 (Fla. 3d DCA 1987).…

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