ORAL HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Henry's cocaine delivery conviction and remanded for a new trial because the prosecutor made unsupported comments during closing argument implying the defense had tampered with an alibi witness, which violated fundamental fairness and was highly prejudicial.
The prosecutor's comment implying witness tampering without evidentiary support was error warranting a new trial because it falsely suggested the defense committed criminal conduct. The defendant's statement to arresting officers was properly admitted as an admission against interest because it can be interpreted as an admission of presence at the location and intent to return, even though it implied future criminal activity.
[1] A prosecutor's closing argument implying that a defense witness was tampered with by the defense, without any evidentiary support, constitutes impermissible and prejudici…
[2] Impeachment of a witness with prior inconsistent statements may suggest the witness is lying, but it does not, on its own, imply that another party has influenced the wit…
Previewing 2 of 4 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“That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial.”
Establishes the court's holding that the prosecutor's unsupported implication of witness tampering was reversible error because it falsely accused the defense of criminal conduct without any evidentiary basis.
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Join FLexlaw to unlock all legal intelligenceHenry was charged with delivery of cocaine to an undercover officer who made a positive identification. Henry presented an alibi defense, claiming he …
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WARNER, Judge.
During closing argument in this prosecution for delivery of cocaine, the prosecutor argued that somebody “got to” one of the defense alibi witnesses, without any evidence whatsoever of any improper contact with the witness. Because this comment implies tampering with a witness and the suborning of perjury by the defense, we hold that it was error warranting a new trial.
The appellant was charged with delivery of cocaine to an undercover officer. The officer made a positive identification of the appellant.
However, appellant put on an alibi defense, contending that he was with a friend and his girlfriend, fixing his car on the night of the incident. When the girlfriend testified, she was impeached by her deposition as to certain facts she testified to at trial. In general she was a great deal more vague at trial about the time sequence involved than she was during her deposition, and those discrepancies were brought out on cross-examination. During closing argument, the prosecutor argued that “I impeached her a little bit because I wanted to show you that somebody got to her. Somebody got to her.” The trial court overruled the appellant’s objection that the statement lacked evidentiary support.
On appeal, the state argued that the prosecutor’s comment was a conclusion that could be drawn from the fact that the witness was impeached with prior inconsistent statements. The fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change her story. The implication by the prosecutor in this case was that the defense “got to” the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial. See Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984), rev. denied, 456 So. 2d 1182 (Fla.1984).
We strongly disapprove of the prosecutor’s making comments which impugn the defense without any basis. We cannot deem the comment harmless, as it may have affected the weight that the jury ascribed to the testimony of appellant’s alibi witnesses. We therefore must reverse for a new trial.
Appellant also contends that his statement to the officers at the time of his arrest that “this isn’t about anything — the arrest doesn’t mean anything — the bond doesn’t mean anything — that he would be back tomorrow” implied that the appellant would be back the next day to deliver cocaine and therefore was irrelevant and prejudicial in that it implied future criminal conduct. The officers had arrested the appellant several days after the controlled purchase by the undercover officer. The arrest took place at the same location as the original controlled buy.
First appellant attempted to walk away from the arresting officers. Then he was loud, boisterous, and cocky in repeatedly stating that the arrest didn’t mean anything to him.
The trial court had admitted the statement as an admission against interest. Taken in the context that it was delivered, the jury could infer from the comment that defendant admitted his presence in this location and that he would be back again doing the same thing. The fact that the comment implied future criminal activities does not render it inadmissible if it can be interpreted as an admission against interest. See State v. Lamar, 538 So. 2d 548 (Fla. 3d DCA 1989); State v. Patterson, 516 S.W. 2d 571 (Mo.App.1974).
We do not address the issues with regard to the sentence because of the necessity to retry this case.1
Reversed and remanded for a new trial.
HERSEY and GUNTHER, JJ., concur. . However, the state conceded error in that the trial court departed from the guidelines without written reasons and the written order of community control did not conform to the oral pronouncement.
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Citator
Cited By (16 total)
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Penalver v. State, 926 So. 2d 1118 (Fla. 2006)…state to suggest, without evidentiary support, that the defense has “gotten to” and changed a witness’s testimony or that a witness has [*1130] not testified out of fear. See Johnson v. State, 747 So. 2d 436, 439 (Fla. 4th DCA 1999); Henry v. State, 651 So. 2d 1267, 1268-69 (Fla. 4th DCA 1995). In this case, there was no evidentiary support for the prosecutor’s comment that Wil-sure failed to testify out of fear or made her initial statement because someone threatened her. The state correctly concedes that the…
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Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012)…th DCA 2001); Jones v. State, 449 So. 2d 313, 314-15 (Fla. 5th DCA 1984). The fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change his or her story. Herny v. State, 651 So. 2d 1267, 1268 (Fla. 4th DCA 1995). As explained in Tindal, because the prosecutor is an agent of the State, such comments suggest that the prosecutor has unique knowledge that has not been presented to the jury. 803 So. 2d at 810. Additionally, such comment…
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Cooper v. State, 712 So. 2d 1216 (Fla. 3d DCA 1998)…eet that night and none of them came in to testify in this case. A suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, without a foundation in the record, is completely improper. See e.g., Henry v. State, 651 So. 2d 1267, 1269 (Fla. 4th DCA 1995); Jones v. State, 449 So. 2d 313, 314 (Fla. 5th DCA 1984); Fla. R. Profl Conduct 4-3.4(d). The credibility of the defense witnesses, or of any witness, is for the jury to decide. See e.g., Hufham v. State, 400 So. 2d 133, 13…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984)
- State v. Lamar, 538 So. 2d 548 (Fla. 3d DCA 1989)