STATE OF FLORIDA, APPELLANT,
v.
RICHARD STEVEN FRITZ, APPELLEE
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The State appeals a trial court's order granting defendant Fritz a new trial based on alleged prosecutorial misconduct during closing arguments. The appellate court reversed, holding that the defendant failed to preserve the claim by not requesting a curative instruction or mistrial immediately after the prosecutor's allegedly improper comment, and that even if preserved, the comment did not constitute fundamental error.
The appellate court held that to preserve a claim of prosecutorial misconduct, defense counsel must object and, if the objection is sustained, must request a curative instruction or mistrial at that time; waiting until after trial to seek a new trial does not preserve the issue. Additionally, the prosecutor's comment does not constitute fundamental error, and the strong evidence of guilt—reinforced by defendant's own testimony—was not tainted by the comment.
[1] To preserve a claim of prosecutorial misconduct, defense counsel must object to the misconduct and, if the objection is sustained, request a curative instruction or a mis…
[2] A defendant cannot await the outcome of a trial to seek a new trial based on alleged prosecutorial misconduct.
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“in order to preserve a claim based on improper prosecutorial conduct, defense counsel must object, and if the objection is sustained he must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek the relief of a new trial.”
Establishes the procedural requirement for preserving prosecutorial misconduct claims and the failure to do so bars relief on appeal
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Join FLexlaw to unlock all legal intelligenceFritz was convicted of battery on a police officer and criminal mischief involving damage to a police vehicle. During closing arguments, defense couns…
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COBB, Judge.
The state appeals the trial court order granting the defendant’s motion for new trial after he was convicted of battery on a police officer and criminal mischief (damage to a police vehicle). The basis for the trial court’s order was prosecutorial misconduct in the form of an improper closing argument.
During closing argument, defense counsel made the following statement: The other thing about this ease you have to realize is when the state brings forth the charges, there is not a validity, it doesn’t make it a valid charge simply or merely because the state is charging it. If a police officer says something happens and an elected official who depends on police support to get reelected says file it, charge it, take it and throw it to the jury, that doesn’t make it valid.
The defendant’s closing argument provoked numerous objections which were sustained. The trial court admonished defense counsel to argue the merits of the case, and on several occasions instructed the jury to disregard defense counsel’s improper comments and arguments.
During the state’s rebuttal, the prosecutor stated:
Also, ladies and gentlemen, when the state puts a witness on the stand, in fact they are vouching for their credibility as a witness. The state has to have some belief that what they are testifying to is the truth. The state cannot in good faith put a witness on the stand that they believe—
The defense objected on the basis that the prosecutor was improperly vouching for the credibility of the officers’ testimony. The trial court noted that defense counsel had opened the door and that it was a fair response to defense counsel’s previous improper comments; nevertheless, the trial court sustained the objection. Thereafter, at a post-trial hearing on the defendant’s motion for new trial, defense counsel represented to the court that a motion for mistrial had been made immediately after closing argument. The prosecutor said that her notes did not reflect any such motion. There was no transcript of the trial available to the court at that time.
In the order granting the motion for new trial, the trial court specifically found that defense counsel had moved for a mistrial at the conclusion of the arguments. The record does not reflect that defense counsel moved for a curative instruction or for a mistrial based on the state’s improper comment, either at the time of the objection or at the end of the closing arguments.
The law is clear that, in order to preserve a claim based on improper prosecutorial conduct, defense counsel must object, and if the objection is sustained he must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek the relief of a new trial. Holton v. State, 573 So. 2d 284, 288 n. 3 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275,114 L.Ed.2d 726 (1991); Nixon n. State, 572 So. 2d 1336, 1340 (Fla.1990), cert, denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991); Clark v. State, 363 So. 2d 331, 335 (Fla.1978), abrogated on other grounds, State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Houston v. State, 394 So. 2d 557 (Fla. 3d DCA 1981); see also Simpson v. State, 418 So. 2d 984, 986 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983).
Additionally, we reject any notion that the state’s comment represents fundamental error. Crump v. State, 622 So. 2d 963 (Fla.1993). Even if we considered the issue preserved for appeal, the prosecutor’s comment is not so outrageous as to taint the jury’s findings. Crump at 972. Moreover, the state’s evidence of guilt was clear and compelling, and was reinforced, in large measure, by the defendant’s own trial testimony.
Accordingly, we reverse the trial court’s order granting new trial, and remand this cause for sentencing.
REVERSED AND REMANDED.
GOSHORN and THOMPSON, JJ., concur.
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Companioni v. City OF Tampa, 51 So. 3d 452 (Fla. 2010)…nflict with the decisions of the Third District Court of Appeal in State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995), and Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983), and the Fifth District Court of Appeal in State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995).1 The districts conflict over whether a trial court may grant a post-verdict motion for a new trial based on attorney misconduct that occurred during the course of trial, when contemporaneous objections to the misconduct were su…
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Knoizen v. Jenina M. Bruegger, 713 So. 2d 1071 (Fla. 5th DCA 1998)…. Superior Industries Int’l, Inc. v. Faulk, 695 So. 2d 376 (Fla. 5th DCA), rev. denied, sub nom., Hopper v. Superior Industries Int’l, Inc., 700 So. 2d 685 (Fla.1997); D’Auria v. Allstate Ins. Co., 673 So. 2d 147 (Fla. 5th DCA 1996); State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995); Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA), rev. dismissed, 649 So. 2d 232 (Fla.1994); Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993); Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA), r…
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D'Ambrosio v. State, 736 So. 2d 44 (Fla. 5th DCA 1999)…996) (combination of personal attacks on defense counsel, arguing facts not in evidence, and bolstering of police officer testimony in closing argument rose to level of fundamental error destroying defendant’s right to a fair trial); State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995) (outside of the exceptional circumstance where the error rises to the level of being fundamental, in order to preserve a claim of improper prosecutorial misconduct, objection must be made and if the objection is sustained defenda…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Holton v. State, 573 So. 2d 284 (Fla. 1990)
- Nixon v. State, 572 So. 2d 1336 (Fla. 1990)
- Crump v. State, 622 So. 2d 963 (Fla. 1993)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Fort Pierce Utils. Auth. v. Fed. Energy Regulatory Comm'n, 459 U.S. 1156 (U.S. 1983)
- Chaparro-Almeida v. United States, 459 U.S. 1156 (U.S. 1983)
- Hernandez v. Texas, 500 U.S. 960 (U.S. 1991)
- Newman v. United States, 502 U.S. 854 (U.S. 1991)