STEVEN CONNELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Connelly was convicted of scheming to defraud banks through fraudulent property foreclosure practices. The Florida Second District Court of Appeal reversed his conviction and remanded for a new trial due to gross prosecutorial misconduct during voir dire, cross-examination, and closing argument that improperly attacked his credibility and defense theory.
Connelly was denied a fair trial and is entitled to reversal and a new trial. The prosecutor's multiple instances of misconduct—including improper hypothetical questioning about the Fifth Amendment privilege, personal attacks on Connelly's character and appearance designed to suggest deception, and explicit statements that Connelly lied—constitute egregious and willful misconduct requiring reversal.
[1] A prosecutor's hypothetical question during voir dire that suggests a defendant is invoking the Fifth Amendment privilege against self-incrimination can constitute revers…
[2] A prosecutor's personal attacks on a defendant's character, upbringing, or appearance during cross-examination, intended to undermine their defense, constitute reversible…
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Join FLexlaw to unlock all legal intelligence“It is 'unquestionably improper' for a prosecutor to state that the defendant has lied.”
Establishes the fundamental legal rule violated by the prosecutor's closing argument
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Join FLexlaw to unlock all legal intelligenceConnelly managed rental properties and allowed them to go into foreclosure by collecting rents without applying proceeds to mortgage notes. After lend…
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STRINGER, Judge.
Steven Connelly challenges his conviction and sentence for scheming to defraud several banks. Connelly managed several rental properties and allowed them to go into foreclosure by collecting rents without applying the proceeds to the mortgage notes. After the lenders initiated foreclosure, Connelly stalled foreclosure proceedings on several properties by filing sham pleadings and removing the actions from state circuit courts to federal bankruptcy courts across the country. Because we find that Connelly was denied a fair trial due to gross prosecutorial misconduct, we reverse. Prosecutor Migliore gave the venire panel the following hypothetical during voir dire:
The U.S. Senate Committee is in session. There is (sic) all the senators in a semi corral. There is the fellow sitting in front of the mike. The senator poses a question. The fellow there puts his hand to the [micro]phone, leans to the left, whispers in the ear of the fellow sitting there and takes his hand off the mike and says—
One prospective juror answered, “pleads the fifth.” Defense counsel’s subsequent motion for mistrial was denied.
Prior to posing this hypothetical, the prosecutor noted: “The defendant is entitled to several constitutional protections. I think you probably know them all.” The prosecutor then asked, “What constitutional rights does Mr. Connelly enjoy here in the court room today?” Thus, the hypothetical in question was one portion of a dialogue between the prosecutor and prospective jurors intended to test the panel’s knowledge of a criminal defendant’s constitutional rights. Good intentions notwithstanding, the prosecutor’s hypothetical and the response it elicited were certainly, by the standard set forth in State v. Kinchen, 490 So. 2d 21, 22 (Fla.1985), susceptible of being interpreted as improper comments on Connelly’s right to refrain from taking the stand. Comparing Connelly to a party who “pleads the fifth” at congressional hearings conjures up images of crooked politicians shielding themselves from prosecution with the privilege of silence. Comments such as this are considered serious error but are nevertheless subject to a harmless error analysis. See Heath v. State, 648 So. 2d 660 (Fla.1994). The prosecutor’s hypothetical in the present case might be considered harmless but for other instances of prosecutorial misconduct brought to our attention in this appeal.
Connelly also argues 'that the trial court erred by denying his motion for mistrial based on personal attacks upon him and his theory of defense during cross-examination and closing argument. We agree that tolerating this level of prosecutorial misconduct without a stern admonition or curative instruction from the trial judge constitutes reversible error. Connelly’s defense at trial was lack of intent. Connelly testified that he did not believe his conduct was unlawful; he felt that these practices were aggressive, but legal business maneuvers. On cross-examination, Prosecutor Migliore made the following inquiry concerning Connelly’s defense:
Q: You are a relatively soft spoken gentleman; aren’t you?
A: Yes.
Q: Raised as a southerner?
A: Yes, sir. Q: Raised to say yes, sir. No, sir. Yes, ma’am; No, ma’am. Just as polite as can be; fair enough?
A: That’s correct. Yes, sir. Q: You appear well in a suit today, if I may say so, or ask if you think you do?
A: I don’t know.
Q: Certainly you don’t present the picture sitting there today of a criminal; do you?
Q: Sir, isn’t it true that you basically took control of [the properties] ... and engaged in the same scheme to defraud the lenders over there that you did to the Frances Dory properties? Or were you just trying to aggressively conduct your business?
A: No. My intent was not to do that.
Q: No. It’s never going to be your intent here this afternoon to defraud anybody. Will it ever be, sir? You can sit here with a straight face, sir, and tell this jury that you committed deceitful acts that are probably somewhere be tween 100 and 200 and tell the members of the jury that you gave — you had a little bit of conscious (sic) at the time-but you certainly didn’t intend to defraud anybody? Is that a fair statement, sir? (emphasis added).
Defense counsel objected and moved for mistrial, arguing that the State was belittling or negating the essence of Connelly’s defense. The motion was erroneously denied.
Subsequently, in closing argument, Migliore suggested that Connelly lied on cross-examination: “Now, he’s gotten up here and told you today what it is you would expect him to say. T didn’t intend .... ’ What do you think of his willingness to he and lie and he and he, literally, by his calculations on cross-examination — hundreds of times.” The gist of this argument was that Connelly should be found guilty based on the prosecutor’s opinion of his “willingness to he.”
“It is ‘unquestionably improper’ for a prosecutor to state that the defendant has lied.” Washington v. State, 687 So. 2d 279, 280 (Fla. 2d DCA 1997) (citing O’Callaghan v. State, 429 So. 2d 691, 696 (Fla.1983)). Therefore, without question, the prosecutor’s comments during closing argument require reversal. Prosecutor Migliore’s inquiry on cross-examination concerning Connelly’s character, upbringing and appearance on the day of trial is equally disturbing. This hne of questioning implied that Connelly deceived the lenders and in like manner was attempting to deceive the jury, with smooth talk and sharp attire. The hazard of the prosecutor’s misconduct is magnified by the fact that the offense itself involves intentional untruthfolness, and Connelly’s defense presented a pure question of credibility, i.e., did he engage in these practices based solely on an aggressive business judgment, or was he aware that his conduct was unlawful? Moreover, the prosecutor’s inquiry and comments during closing improperly conveyed his opinion on Connelly’s theory of defense and challenged his temerity in even raising the defense. See Miller v. State, 712 So. 2d 451 (Fla. 2d DCA 1998) (error to deny motion for mistrial when prosecutor improperly expressed his opinion in an effort to discredit proper legal defense).
The egregious and obviously willful misconduct we review in this case requires a new trial. This court has issued countless opinions1 cautioning against conduct such as this, which is far beneath the level of integrity and professionalism prescribed by The Florida Bar’s standards of professional conduct. Unfortunately, reversal and public admonishment have proven to be ineffective deterrents. Perhaps the prospect of disciplinary proceedings will prove to be a more effective deterrent.
Reversed and remanded for new trial.
CAMPBELL, A.C.J., and WHATLEY, J., Concur. . See, e.g., Bell v. State, 723 So. 2d 896, 897 (Fla. 2d DCA 1998) (“If attorneys do not recognize improper argument, they should not be in the courtroom. If attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.’’) (quoting Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994) (Blue, J., concurring specially)). See also Palazon v. State, 711 So. 2d 1176, 1178 n. 2 (Fla. 2d DCA 1998) (Blue, J., concurring specially); Washington v. State, 687 So. 2d 279 (Fla. 2d DCA 1997).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Denmark v. State, 927 So. 2d 1079 (Fla. 2d DCA 2006)…ng argument misled jury and discredited insanity defense); Milburn v. State, 742 So. 2d 362, 364 (Fla. 2d DCA 1999) (holding prosecutor’s closing argument misstatement of defendant's burden on insanity defense required new trial); Connelly v. State, 744 So. 2d 531, 532 (Fla. 2d DCA 1999) (reversing conviction based on prosecutorial misconduct during trial and closing argument).…
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Rodriguez v. State, 822 So. 2d 587 (Fla. 2d DCA 2002)…ng the next question. The more troublesome concern, however, is the prosecutor’s characterization of Mr. Rodriguez as a liar. It is improper for a prosecutor to call a defendant a liar, unless the record clearly supports such. See Connelly v. State, 744 So. 2d 531 (Fla. 2d DCA 1999). The record here clearly does not support the accusation. The use of a translator at trial in no way equates to factual support for the accusation that the defendant is a liar. The offensiveness of this improper argument is empha…
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Kellogg v. State, 761 So. 2d 409 (Fla. 2d DCA 2000)…re, 719 So. 2d at 1203 (quoting Ryan v. State, 457 So. 2d 1084, 1091 (Fla. 4th DCA 1984)). Once again, we caution prosecutors against over zealousness and improper prosecutorial conduct. See Ruiz v. State, 743 So. 2d 1 (Fla.1999); Connelly v. State, 744 So. 2d 531 (Fla. 2d DCA 1999). Reversed and remanded for a new trial. CAMPBELL, A.C.J., and STRINGER, J., Concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heath v. State, 648 So. 2d 660 (Fla. 1994)
- State v. Kinchen, 490 So. 2d 21 (Fla. 1985)
- O'Callaghan v. State, 429 So. 2d 691 (Fla. 1983)
- Demitrius Bell v. State, 723 So. 2d 896 (Fla. 2d DCA 1998)
- Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994)
- Oswaldo Palazon v. State, 711 So. 2d 1176 (Fla. 2d DCA 1998)
- Miller v. State, 712 So. 2d 451 (Fla. 2d DCA 1998)
- Washington v. State, 687 So. 2d 279 (Fla. 2d DCA 1997)