CRAIG STANLEY ROGOWSKI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Craig Stanley Rogowski appeals his convictions for dealing in stolen property, burglary, theft, conspiracy, and RICO violations, claiming the prosecutor engaged in improper comments and conduct that denied him a fair trial. The Florida District Court of Appeal, Third District, rejected all of his claims and affirmed the convictions.
The court held that while some of the prosecutor's comments were improper, they did not individually or collectively deprive the defendant of a fair trial. The elicitation of plea agreement information was proper and not improper vouching; the prosecutor's outburst was improper but mitigated by the fact it was provoked by defense counsel's improper questions, the prosecutor apologized, and the court cautioned both lawyers; and the comment about the defendant's failure to call a witness was improper but provoked by defense counsel's own improper comment and was cured by the trial court's jury instruction.
[1] The nature of a plea agreement is admissible to show a witness's motive for testifying, especially when the defense attacks the witness's credibility based on that agreem…
[2] A prosecutor's elicitation of the terms of a plea agreement, including the requirement to testify truthfully under penalty of perjury, does not constitute improper vouchi…
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Join FLexlaw to unlock all legal intelligence“The nature of the plea agreement was highly relevant and clearly admissible at trial. Defense counsel repeatedly attacked the credibility of these witnesses based, in part, on these plea agreements, and it was entirely proper for the state to emphasize, as it did, the complete nature of the plea agreements.”
Establishes that eliciting testimony about plea agreements and witness credibility was proper and not improper vouching
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Join FLexlaw to unlock all legal intelligenceRogowski was convicted by jury on eight counts of dealing in stolen property, two counts of burglary, two counts of theft, one count of conspiracy to …
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PER CURIAM.
This is an appeal by the defendant Craig Stanley Rogowski from multiple final judgments of conviction and sentences for eight counts of dealing in stolen property, two counts of burglary, two counts of theft, one count of conspiracy to commit burglary, and one count of a Florida RICO violation — all based on an adverse jury verdict. The sole point raised on appeal is that the prosecuting attorney engaged in a series of improper comments and conduct which deprived the defendant of a fair trial. We reject this point and affirm.
First, the state attorney committed no error in eliciting on several occasions from three of the state’s witnesses that they had entered into certain plea agreements as co-defendants in the case to testify truthfully against the defendant upon pain of being prosecuted for perjury. The nature of the plea agreement was highly relevant and clearly admissible at trial. Defense counsel repeatedly attacked the credibility of these witnesses based, in part, on these plea agreements, and it was entirely proper for the state to emphasize, as it did, the complete nature of the plea agreements.
We reject the defendant’s claim that the state, in so doing, was somehow vouching for the witness’ credibility. See United States v. Necoechea, 986 F. 2d 1273, 1278-79 (9th Cir.1993); United States v. Martino, 648 F. 2d 367, 368 (5th Cir.1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982); cf. Oliver v. State, 442 So. 2d 317, 319 (Fla. 2d DCA 1983).
Second, the state attorney’s outburst against defense counsel during the defendant’s cross-examination of a state witness (“Why don’t you stick to the truth”) was, we agree, improper, but (a) it was in response to certain improper questions by defense counsel which the trial court disallowed upon objection by the state, (b) the prosecuting attorney immediately apologized, and (c) the trial court cautioned both lawyers. Under these circumstances, we cannot say that the defendant was deprived of a fair trial. See Schwarck v. State, 568 So. 2d 1326, 1327 (Fla. 3d DCA 1990); Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971); Evans v. State, 178 So. 2d 892, 893 (Fla. 3d DCA 1965).
Third, the state attorney’s comment on the defendant’s failure to call a witness because the witness had nothing positive to say about the defendant was, we agree, improper. This comment, however, was also provoked by an improper comment by the defense counsel on the state’s failure to call this same witness, namely, that this witness was the real perpetrator in this case, rather than the defendant, although there was no evidence to support this comment.
Moreover, the trial court sustained the defendant’s objection to the state’s comment and properly instructed the jury that the state had the burden of proof in the case and that the defendant “need not prove anything.” The defendant was not deprived of a fair trial by this comment. See Deshler v. State, 298 So. 2d 428, 429-30 (Fla. 1st DCA), cert. dismissed, 300 So. 2d 897 (Fla.1974).
Finally, there is no merit to the remaining claim that the state attorney made other improper comments. Moreover, none of the eomplained-of comments discussed above, either individually or collectively, deprived the defendant of a fair trial. See Reichmann v. State, 581 So. 2d 133, 139 (Fla.1991), cert. denied, — U.S. -, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992); Jackson v. State, 575 So. 2d 181, 189 (Fla.1991); Francis v. State, 384 So. 2d 967, 969 (Fla. 3d DCA 1980).
Affirmed.
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Mese v. State, 824 So. 2d 908 (Fla. 3d DCA 2002)…that the trial court was vouching for Delgado’s credibility. Rather, it is clear to us that the prosecutor was attempting to outline the complete nature of Delgado’s plea arrangement with the state, which was entirely proper. See Rogowski v. State, 643 So. 2d 1144 (Fla. 3d DCA 1994). VII In conclusion, for the foregoing reasons, we reverse the order setting aside the appellant’s guilty verdicts for RICO conspiracy and remand for his sentencing on those counts. We affirm his conviction and sentences on the r…
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Kendrick Silver v. State (Fla. 3d DCA 2019)…erior of the assailant’s mask. 1 Williams v. State, 110 So. 2d 654 (Fla. 1959); § 90.404(2)(a), Fla. Stat. (2019). 2 We decline to embrace a final claim of error grounded upon witness bolstering, without further elaboration. See Rogowski v. State, 643 So. 2d 1144, 1145 (Fla. 3d DCA 1994) (“[T]he state attorney committed no error in eliciting on several occasions from three of the [S]tate's witnesses that they had entered into certain plea agreements as co-defendants in the case to testify truthfully against…
Authorities Cited (13 total)
- Jackson v. State, 575 So. 2d 181 (Fla. 1991)
- United States v. Martino, 648 F.2d 367 (5th Cir. 1981)
- Dieter Riechmann v. State, 581 So. 2d 133 (Fla. 1991)
- Memphis Bank & Tr. Co. v. Garner, 456 U.S. 943 (U.S. 1982)
- Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)
- Sanchez v. Schweiker, 456 U.S. 943 (U.S. 1982)
- Danford Francis, Jr. v. State, 384 So. 2d 967 (Fla. 3d DCA 1980)
- Schwarck v. State, 568 So. 2d 1326 (Fla. 3d DCA 1990)
- Merlin Evans v. State, 178 So. 2d 892 (Fla. 3d DCA 1965)
- United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993)