TOMMY L. NORTHARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed Tommy Northard's conviction and remanded for a new trial because the prosecutor made improper remarks during opening statement and closing argument that improperly suggested the jury should convict based on credibility determinations rather than the state's burden of proof.
The prosecutor's remarks were improper and constituted reversible error. The opening statement improperly suggested that the only facts reflecting truth were those indicating guilt, and the closing argument improperly asked the jury to decide the case based on credibility rather than guilt beyond a reasonable doubt. The errors were not harmless.
[1] A prosecutor's opening statement remark that the jury will find the defendant "caught red-handed" may improperly suggest that the jury should convict based on a belief in…
[2] A prosecutor's closing argument that asks the jury to determine who is lying as the test for finding a defendant not guilty is impermissible.
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Join FLexlaw to unlock all legal intelligence“The State is confident that after you review all the evidence that will be presented to you during this trial, you will deliberate and come back with a verdict, a verdict that simply reflects the truth; that the defendant in this ease was caught red-handed.”
Prosecutor's improper opening statement that suggested only evidence of guilt reflected the truth and improperly implied the defendant's guilt.
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Join FLexlaw to unlock all legal intelligenceDuring trial, the prosecutor made two improper statements: (1) in opening statement, the prosecutor told the jury that after reviewing evidence they w…
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PER CURIAM.
We reverse appellant’s conviction and remand for new trial because the prosecutor’s remarks on opening statement and closing argumentóte which defense counsel unsuccessfully objected, were improper. No motion for mistrial was necessary. Simpson v. State, 418 So. 2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983).
During opening statement, the state told the jury:
The State is confident that after you review all the evidence that will be presented to you during this trial, you will deliberate and come back with a verdict, a verdict that simply reflects the truth; that the defendant in this ease was caught red-handed.
Defense counsel argued that the statement was improper because it says that the only facts which reflect the truth are those indicating appellant’s guilt. Like the instruction in Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967), the prosecutor’s comment could have resulted in a juror voting to convict appellant because the juror believed that in truth appellant committed the crime, even if the state had not met its burden of proof. During closing argument, the state told the jury:
If you believe the defendant’s events the police cannot possibly be telling you the truth, and you’ve got to decide if that’s what they did and they got up here and deliberately fabricated evidence and fabricated testimony for you in order to convict this guy. In order to find him not guilty you’re going to have to believe that. And that’s what your verdict, in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying strictly about the twenty-dollar bill because there’s really not much else—
This argument was impermissible because it improperly asked the jury to determine who was lying as the test for deciding if appellant was not guilty. See Clewis v. State, 605 So. 2d 974 (Fla. 3d DCA 1992). Prosecutorial remarks similar to those made here have been determined to constitute error because they invite the jury “to convict the defendant for a reason other than his guilt of the crimes charged.” Bass v. State, 547 So. 2d 680, 682 (Fla. 1st DCA) (arguing that if jury is going to tell state’s witness he lied, then find defendant not guilty, but if jury is going to tell defendant he lied, then find defendant guilty), rev. denied, 553 So. 2d 1166 (Fla. 1989); accord Ryan v. State, 457 So. 2d 1084, 1089 (Fla. 4th DCA 1984) (asking jury not to set defendant free into community in part because she was a liar), rev. denied, 462 So. 2d 1108 (Fla.1985).
The errors were not harmless.
GLICKSTEIN, WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Gore v. State, 719 So. 2d 1197 (Fla. 1998)…ason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. See Northard v. State, [*1201] 675 So. 2d 652, 653 (Fla. 4th DCA), review denied, 680 So. 2d 424 (Fla.1996); Clewis v. State, 605 So. 2d 974, 974 (Fla. 3d DCA 1992); Bass v. State, 547 So. 2d 680, 682 (Fla. 1st DCA 1989). Here, the prosecutor’s statement, “[i]f you believe he’s lying to you, he…
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Toney Deron Davis v. State, 136 So. 3d 1169 (Fla. 2014)…yond a [*1205] reasonable doubt.” Gore, 719 So. 2d at 1200. An argument that the jury may acquit the defendant if and only if the jury believes that the defendant is telling the truth is likewise a misstatement of Florida law. See Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA 1996) (concluding that argument that “in order to find [the defendant] not guilty you’re going to have to believe that the defendant was telling the truth” was improper). In this case, the prosecutor did not make either of these t…
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DeFREITAS v. State, 701 So. 2d 593 (Fla. 4th DCA 1997)…un] would be if it was on your chest.” The comparison with the O.J. Simpson trial simply had no place in this case. These arguments urged the jury “to convict the defendant for a reason other than his guilt of the crimes charged.” Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA), review denied, 680 So. 2d 424 (Fla.1996). . Footnote 5 of Judge Baker’s opinion sets forth the pertinent questioning on this issue. The trial court’s written order denying the motion for new trial reflects the trial court's bel…
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
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- Gibbs v. State, 193 So. 2d 460 (Fla. 2d DCA 1967)
- 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)
- Clewis v. State, 605 So. 2d 974 (Fla. 3d DCA 1992)
- Bass v. State, 547 So. 2d 680 (Fla. 1st DCA 1989)