JAMES A. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James A. Brown appeals his convictions for robbery, aggravated assault, and possession of cocaine. The Florida District Court of Appeal reversed and remanded for a new trial because the prosecutor made improper comments during closing argument that constituted an improper appeal for sympathy and an improper expression of personal belief.
The court reversed and remanded for a new trial based on the prosecutor's improper comments during closing argument. The court declined to address the jury excusal issue and found no merit in the contentions regarding jury instructions.
[1] A prosecutor's closing argument improperly appeals for sympathy for the victim and expresses a personal belief, creating hostile emotions toward the accused.
[2] A prosecutor's comment on a defendant's failure to call a witness improperly suggests the defendant bears the burden of proving innocence.
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Join FLexlaw to unlock all legal intelligence“This argument was not only an improper appeal for sympathy for the victim which would have the natural effect of creating hostile emotions toward the accused, Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983), but also an improper expression of personal belief.”
Establishes that the prosecutor's comments about victim victimization and dignity constituted reversible error
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Join FLexlaw to unlock all legal intelligenceJames A. Brown was tried and found guilty of robbery, aggravated assault, and possession of cocaine. During closing argument, the prosecutor made stat…
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SCHOONOVER, Chief Judge.
The appellant, James A. Brown, challenges the judgments and sentences imposed upon him after he was found guilty of robbery, aggravated assault, and possession of cocaine. We reverse.
The appellant has raised four points on appeal. We find no merit in his contentions that the trial court erred in the instructions given to the jurors or in rein-structing them during their deliberations.
It is not necessary, and we, therefore, decline to address the appellant’s contention that the trial court erred by allowing the state to excuse a member of a minority from the jury solely because the state had accepted another member of the same minority. On remand the trial court should be sure to apply the principles set forth in State v. Slappy, 522 So. 2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); State v. Neil, 457 So. 2d 481 (Fla.1984); Stubbs v. State, 540 So. 2d 255 (Fla. 2d DCA 1989); see also Green v. State, 572 So. 2d 543 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 164 (Fla.1991).
We agree with the appellant’s remaining contention that certain comments made by the assistant state attorney during the appellant’s trial require reversal.
The prosecutor began his closing argument by stating that it seemed to him that there was something wrong with the criminal justice system when a victim of a crime has to be victimized again by having to testify concerning the events of a crime and have his character impugned. He continued by stating that it seemed to him there was something wrong when the victim was the one put on trial. He concluded his argument by stating that when the case was over he wanted to be able to call the victim and say that the jury had the courage to see the truth and that he was not victimized a second time. He also told the jurors that they were the only ones that could give the victim back his dignity. This argument was not only an improper appeal for sympathy for the victim which would have the natural effect of creating hostile emotions toward the accused, Edwards v. State, 428 So. 2d 357 (Fla. 3d DCA 1983), but also an improper expression of personal belief. Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985).
During the course of his argument, the prosecutor also improperly commented on the appellant’s failure to call a witness. This comment indicated that the defendant had the burden to come forward with evidence and prove his innocence and was therefore prejudicial. Dunbar v. State, 458 So. 2d 424 (Fla. 2d DCA 1984).
The combination of these improper comments requires us to reverse and remand for a new trial. Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988); Singletary.
Reversed and remanded.
CAMPBELL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1998)…er attack on defense counsel in closing argument); Terrazas v. State, 696 So. 2d 1309 (Fla. 2d DCA 1997) (reversing based on State’s improper opening argument that implied the defendant’s guilt based on his ethnic heritage). See also Brown v. State, 593 So. 2d 1210 (Fla. 2d DCA 1992); Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985); Gonzalez v. State, 97 So. 2d 127 (Fla. 2d DCA 1957). That criticism does not, however, relieve defense counsel of the obligation to object and, when appropriate, move for mist…
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Lawson v. State, 651 So. 2d 713 (Fla. 2d DCA 1995)…ross-examined by the state regarding whether certain witnesses would be called by the defense. The prosecutor’s questions implied that Lawson had the burden to produce evidence and prove his innocence. Such questioning was error. See Brown v. State, 593 So. 2d 1210 (Fla. 2d DCA 1992). Finally, we note that the wrong sentencing guidelines scoresheet was used in [*716] sentencing Lawson. If Lawson is again convicted on these charges, the sentencing court shall use the category five scoresheet to impose sentence…
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Johns v. State, 832 So. 2d 959 (Fla. 2d DCA 2002)…y rose to the level of reversible error. The prosecutor’s first statement was a request that the jury show sympathy for the victim. This type of argument is clearly improper. See Thomas v. State, 787 So. 2d 27, 30 (Fla. 2d DCA 2001); Brown v. State, 593 So. 2d 1210, 1211-12 (Fla. 2d DCA 1992). The prosecutor also argued that the State had charged the right person and had only brought charges that it could prove, implying the State only charges those who are guilty. An argument that the State only charges those…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- Men's Int'l Prof'l Tennis Council v. Volvo N. Am. Corp., 487 U.S. 1219 (U.S. 1988)
- Waste Mgmt. of Wis., Inc. v. Wis. Dep't of Natural Res., 487 U.S. 1219 (U.S. 1988)
- Edwards v. State, 428 So. 2d 357 (Fla. 3d DCA 1983)
- Dorris Slater Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988)
- Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985)
- State v. E.B., 540 So. 2d 255 (Fla. 4th DCA 1989)
- Green v. State, 572 So. 2d 543 (Fla. 2d DCA 1990)
- Dunbar v. State, 458 So. 2d 424 (Fla. 2d DCA 1984)