GEORGE KENNERDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Kennerdy appeals his aggravated battery conviction, contending that the prosecutor's inflammatory closing argument remarks deprived him of a fair trial. The appellate court reversed and remanded for a new trial, finding the prosecutor's attacks on defense witness credibility—including accusations of perjury and comparing jurors to "suckers"—were improper and went to the heart of the defense case in a credibility-driven trial.
The court held that the prosecutor's inflammatory and improper comments were not harmless error because the case turned on a credibility contest and the prosecutor's unfair attack on the defense witnesses' credibility went to the heart of the defense case, thereby depriving Kennerdy of his right to a fair trial.
[1] A prosecutor's inappropriate remarks during closing arguments can deprive a defendant of their right to a fair trial, warranting reversal of a conviction.
[2] Accusing defense witnesses of committing perjury and suggesting the defendant orchestrated their false testimony constitutes improper prosecutorial argument.
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Join FLexlaw to unlock all legal intelligence“Because we conclude that the prosecutor's inappropriate remarks during closing arguments served to deprive Kennerdy of his right to a fair trial, we reverse.”
States the core holding that improper prosecutor comments violated the defendant's right to a fair trial, necessitating reversal.
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Join FLexlaw to unlock all legal intelligenceKennerdy was convicted of aggravated battery in a case that turned on credibility of the State's witnesses versus two defense witnesses. During closin…
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PER CURIAM.
George Kennerdy appeals his conviction for aggravated battery. Because we conclude that the prosecutor’s inappropriate remarks during closing arguments served to deprive Kennerdy of his right to a fair trial, we reverse.
As the prosecutor acknowledged in her closing argument, the case turned on the credibility of the State’s witnesses versus that of the two defense witnesses. In attacking the credibility of the two defense witnesses, the prosecutor stated that they had been “spoon-fed” their testimony. In the State’s rebuttal closing, the prosecutor asserted that Kennerdy had convinced his two witnesses to commit perjury: “[Ken-nerdy] has a profound disrespect for this legal system. And you know how we know that? One, somehow he’s convinced two young men to come in here, and I would submit to you, commit perjury.” The trial court overruled the defense objection to this comment. The prosecutor continued with more egregious comments. She stated “the defendant thinks he’s got six suckers sitting here,” and she accused Kenner-dy of attempting to perpetrate a fraud on the jury and on the criminal justice system. No further objection was made.
We have reversed for a new trial in a civil case, Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993), where the defense counsel accused plaintiffs medical expert of committing perjury and argued that the case was a scheme worked up by the medical expert and the attorneys. The comments by the prosecutor here were equally inflammatory and improper. The State asserts that the issue of improper argument has not been preserved except as to the single remark that Kennerdy objected to, and that remark was harmless error.
We disagree that the preserved error was harmless. The case turned on a credibility contest and the prosecutor’s unfair attack on the defense witnesses’ credibility went to the heart of the defense case.
Accordingly, we reverse and remand for a new trial. And, once again, we reiterate the admonition of Judge Blue in his specially concurring opinion in Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994): “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”
Reversed and remanded.
FULMER, A.C.J., and NORTHCUTT and CASANUEVA, JJ„ Concur.
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Citator
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Howard v. State, 152 So. 3d 825 (Fla. 2d DCA 2014)…ing argument that denigrates defense counsel or the defense strategy, Johns v. State, 832 So. 2d 959, 962 (Fla. 2d DCA 2002), including any comments made to suggest that the defense is attempting to perpetuate a fraud on the jury, Kennerdy v. State, 749 So. 2d 507, 507 (Fla. 2d DCA 1999). Here, the State made several comments referring to defense counsel as a magician and implying that magicians are fraudulent and “dupe” people. Contrary to the State’s assertions on appeal, these comments go beyond merely re…
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Carlos v. State, 829 So. 2d 238 (Fla. 3d DCA 2002)…. During closing argument, the prosecutor referred to the defendant’s experts as a “wolving pack of wolves what attack cases as a team [sic].” ' The trial court correctly sustained defense counsel’s objection to the statement. See Kennerdy v. State, 749 So. 2d 507 (Fla. 2d DCA 1999); Ross v. State 726 So. 2d 317 (Fla. 2d DCA 1998). We trust this argument will not recur on retrial. For these reasons, we reverse the defendant’s judgment of conviction and remand for a new trial. Reversed and remanded. . Rohyp…
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Thornton v. State, 852 So. 2d 911 (Fla. 3d DCA 2003)…d 707, 710 (Fla. 5th DCA 2002)(in requesting that the jury return a guilty verdict, prosecutor improperly told the jury that "[y]ou are citizens that speak on behalf of your community in rendering a verdict in this case”. Cf. also Kennerdy v. State, 749 So. 2d 507, 507 (Fla. 2d DCA 1999)(defendant’s conviction reversed based upon state comments that defense witnesses had been "spoon-fed” their testimony and that the defendant had "convinced [two witnesses] to come in here, and I would submit to you, commit pe…
Authorities Cited
- Venning v. Oradell ROE, 616 So. 2d 604 (Fla. 2d DCA 1993)
- Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994)