JOHN KENNEDY JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Jenkins appeals his conviction for aggravated assault with a firearm, arguing that prosecutorial misconduct in closing argument—including personal attacks on defense counsel and an extreme 'golden rule' argument where the prosecutor pointed a shotgun at a juror—deprived him of a fair trial. The appellate court agreed and reversed, finding the misconduct pervasive and harmful.
The court held that the prosecutor's conduct constituted pervasive, harmful error requiring reversal. The personal attacks on defense counsel were clearly improper, and the 'golden rule' argument of pointing the shotgun at a juror was extreme misconduct similar to that condemned in prior cases. The court was not convinced beyond a reasonable doubt that such error did not affect the verdict.
[1] Prosecutorial misconduct in closing argument, including personal attacks on opposing counsel and impermissible "golden rule" arguments, can deprive a defendant of a fair…
[2] A prosecutor's argument that accuses defense counsel of victimizing the victim or seeking acquittal at all costs constitutes an improper personal attack.
Previewing 2 of 5 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“Such remarks constitute a personal attack on opposing counsel and are clearly improper.”
Establishes that the prosecutor's repeated accusations against defense counsel crossed the line into improper personal attacks rather than legitimate argument.
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Join FLexlaw to unlock all legal intelligenceJenkins was tried by jury for aggravated assault with a firearm. During closing argument, prosecutor John Terhune repeatedly attacked defense counsel,…
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PER CURIAM.
This cause is before us on appeal from a judgment and sentence following a jury trial for aggravated assault with a firearm. Appellant contends that prosecutorial misconduct in closing argument deprived him of a fair trial. We agree and reverse.
During closing argument, prosecutor John Terhune repeatedly accused defense counsel of further victimizing the victim and of seeking an acquittal at all costs rather than searching for the truth. Such remarks constitute a personal attack on opposing counsel and are clearly improper. Ryan v. State, 457 So. 2d 1084, 1089 (Fla. 4th DCA 1984) (improper tactic which can poison the minds of the jurors); Briggs v. State, 455 So. 2d 519, 521 (Fla. 1st DCA 1984) (wholly inconsistent with the prosecutor’s role); Redish v. State, 525 So. 2d 928, 931 (Fla. 1st DCA 1988) (clearly beyond bounds of proper closing argument).
Mr. Terhune also engaged in impermissible “golden rule” arguments, the most egregious of which occurred when he pointed the shotgun involved in the incident at one juror while arguing to the others that this was the same circumstance that confronted the victim. This extreme misconduct is similar to that condemned in Peter son v. State, 376 So. 2d 1230 (Fla. 4th DCA 1979), wherein the prosecutor stated he would take two jurors and go back in the jury room and kill one of them, with the other being the sole witness. In reversing and remanding for a new trial, the district court held:
The appeal to the jurors to place themselves in the position of the state’s sole witness — the supposed “victim” of the crime involved — was an entirely unjustified “golden rule” argument of a type which has been universally condemned.... Indeed, in simultaneously making one juror a victim and another juror a witness to the same “crime,” counsel seems to have plumbed depths never before presented in the decided cases.
Defense counsel objected to some of the improper arguments, and the record indicates that the trial court did not approve of Terhune’s conduct. However, the court declined to give cautionary instructions and allowed the improper argument to continue unchecked. As a result, defense counsel was obliged to spend his time in closing argument defending himself as well as his client. We are not convinced beyond a reasonable doubt that such pervasive error did not affect the outcome of the trial, as held in State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.1986):
The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
Accordingly, the judgment and sentence below are reversed, and this cause is remanded for a new trial.
BOOTH, JOANOS and BARFIELD, JJ., concur.
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Conley v. State, 592 So. 2d 723 (Fla. 1st DCA 1992)…des witness after witness to say what a terrible person she is. Conley claims that this inflammatory statement improperly accused the defendant and/or defense counsel of further victimizing M.M. by exercising his right to a trial. Jenkins v. State, 563 So. 2d 791 (Fla. 1st DCA 1990). The state contends that the prosecutor had a right to comment on Conley’s “improper character assassination” of M.M. through several defense witnesses,1 [*731] because Conley’s counsel implied in opening statement that he would…
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Keyuhn Chambers v. State, 924 So. 2d 975 (Fla. 2d DCA 2006)…t the need for the victim to testify the morning after her graduation and the need for her to face questioning by defense counsel as to her credibility was improper. See Peterson v. State, 376 So. 2d 1230, 1233 (Fla. 4th DCA 1979); Jenkins v. State, 563 So. 2d 791 (Fla. 1st DCA 1990). We note that the prosecutor was permitted to question the credibility of Mr. Chambers’ testimony given his prior felony convictions. The prosecutor was also permitted to respond to Mr. Chambers’ argument that the victim might h…
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Hightower v. State, 592 So. 2d 689 (Fla. 3d DCA 1991)…or’s attack on the credibility and integrity of defense counsel constitutes fundamental error which requires reversal. The line of cases holding that such an attack is improper is unequivocal. See Adams v. State, 192 So. 2d at 762; Jenkins v. State, 563 So. 2d 791 (Fla. 1st DCA 1990); Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988); Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984); Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984); and Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982). The prosecuto…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- Dorris Slater Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988)
- R.G.B. v. State, 376 So. 2d 1230 (Fla. 2d DCA 1979)
- Burkhead v. Dade Cnty. Bd. OF Pub. Instruction, 376 So. 2d 1230 (Fla. 3d DCA 1979)
- Warren v. Warren, 455 So. 2d 519 (Fla. 1st DCA 1984)
- Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984)