RAFAEL RIVERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rafael Rivero appeals his convictions for attempted second degree murder with a firearm. The court reversed and remanded for a new trial due to improper prosecutorial closing arguments that constituted reversible error, while affirming the viability of the attempted second degree murder offense and certifying a question to the Florida Supreme Court on whether that crime exists under state law.
The court held that the prosecutor's improper closing arguments were not harmless and the defense motion for mistrial should have been granted, requiring reversal and remand for a new trial. The court also affirmed that attempted second degree murder is a cognizable offense under Florida law, but certified the question to the Florida Supreme Court given that the Fifth District had also accepted jurisdiction on the same issue.
[1] A prosecutor's improper closing arguments, including claims not in evidence, "conscience of the community" arguments, disparaging attacks on defense counsel, and vouching…
[2] An unobjected-to prosecutorial comment suggesting defense witness tampering warrants a mistrial when it cannot be deemed harmless error.
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Join FLexlaw to unlock all legal intelligence“As we are unable to say that the comments were harmless based on the facts of the present case, we conclude that the defense motion for mistrial should have been granted.”
Establishes the standard for reviewing prosecutorial misconduct in closing arguments and the basis for reversal requiring a new trial.
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Join FLexlaw to unlock all legal intelligenceRivero was convicted on two counts of attempted second degree murder with a firearm. During the State's closing argument, the prosecutor made multiple…
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[*1245] PER CURIAM.
Rafael Rivero appeals his convictions on two counts of attempted second degree murder with a firearm. We affirm in part and reverse in part.
During the State’s closing argument, the prosecutor made a litany of improper closing arguments, where the trial court sustained objections eight times. These included a claim that a witness to the crime avoided service of process, a fact not in evidence in the case; what amounted to a “conscience of the community” argument; disparaging attacks on defense counsel and the defense of the case; and vouching for credibility of one of the prosecution witnesses. See Ruiz v. State, 743 So. 2d 1, 4 (Fla.1999); Gomez v. State, 751 So. 2d 630 (Fla. 3d DCA 1999); Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So. 2d 838, 842 (Fla. 3d DCA 1998).
There was an unobjected-to claim that someone had gotten a witness to change his testimony, which was a clear suggestion that the defense had tampered with the witness. There was a comment apparently suggesting that the State had additional facts, not in evidence, regarding a controversy between the victims and the defendant the night before the shooting. See Ruiz, 743 So. 2d at 4; Ford v. State, 702 So. 2d 279, 280 (Fla. 4th DCA 1997).
As we are unable to say that the comments were harmless based on the facts of the present case, we conclude that the defense motion for mistrial should have been granted. See Riley v. State, 560 So. 2d 279 (Fla. 3d DCA 1990). We trust that the prosecutor will not repeat any of these impermissible closing arguments at the retrial.
The defendant also argues that the offense of attempted second degree murder is a nonexistent offense under Florida law. We reject this claim, and affirm on this issue, on authority of Gentry v. State, 437 So. 2d 1097 (Fla.1983), Pitts v. State, 710 So. 2d 62 (Fla. 3d DCA 1998), and Lopez v. State, 742 So. 2d 531 (Fla. 3d DCA 1999). However, the Florida Supreme Court has accepted jurisdiction in Brovm v. State, 733 So. 2d 598 (Fla. 5th DCA 1999), review granted, 744 So. 2d 452 (Fla.1999). In Brown the Fifth District certified the following question:
DOES THE CRIME OF ATTEMPTED SECOND DEGREE MURDER EXIST IN FLORIDA?
733 So. 2d at 599. So that the instant case will be treated consistently, we certify the same question.
Affirmed in part; reversed and remanded for new trial; question certified.
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Cited By (12 total)
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Johnnides v. Amoco OIL Co., Inc., 778 So. 2d 443 (Fla. 3d DCA 2001)…re right under the ink tank. Don’t be fooled by counsel’s argument that you can only — [e.s.] (d) Repeated instances of vouching for the truthfulness of his own case. But see Caraballo v. State, 762 So. 2d 542 (Fla. 5th DCA 2000); Rivero v. State, 752 So. 2d 1244 (Fla. 3d DCA 2000). . While in light of Hightower's egregious conduct, we feel duty bound by Canon 3D(2), Code of Judicial Conduct hereby to report him to the Florida Bar, we have no illusions that this will have any practical effect. Our skepticis…
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Lewis v. State, 780 So. 2d 125 (Fla. 3d DCA 2001)…mbined with additional acts of prose-cutorial overreaching set forth below, we find that the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted. Id. at 7. See also Rivero v. State, 752 So. 2d 1244 (Fla. 3d DCA 2000). The first two comments that drew objections concerned attacks on defense counsel based on his cross of McPhee: Do you recall the abuse and ridicule piled on him by Defense counsel on cross-examination? I thought we were in a r…
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Bell v. State, 768 So. 2d 22 (Fla. 1st DCA 2000)…public importance the following question: DOES THE CRIME OF ATTEMPTED SECOND-DEGREE MURDER EXIST IN FLORIDA? Hagans v. State, 25 Fla. L. Weekly D595, — So. 2d-, 2000 WL 242263 (Fla. 1st DCA Mar.6, 2000) (certifying same question); Rivero v. State, 752 So. 2d 1244, 1245 (Fla. 3d DCA 2000) (same); Brown v. State, 733 So. 2d 598, 599 (Fla. 5th DCA) (same), review granted, 744 So. 2d 452 (Fla.1999). Affirmed in part, reversed in part, and remanded for further proceedings. DAVIS and PADOVANO, JJ., CONCUR.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ruiz v. State, 743 So. 2d 1 (Fla. 1999)
- Davis v. State, 437 So. 2d 1097 (Fla. 1983)
- Wahill Saleh Hack v. State, 733 So. 2d 598 (Fla. 5th DCA 1999)
- Riley v. State, 560 So. 2d 279 (Fla. 3d DCA 1990)
- Pitts v. State, 710 So. 2d 62 (Fla. 3d DCA 1998)
- Colsson D. Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997)
- Kiwanis Club OF Little Havana, Inc. v. de Kalafe, 723 So. 2d 838 (Fla. 3d DCA 1998)
- Gomez v. State, 751 So. 2d 630 (Fla. 3d DCA 1999)
- Lopez v. State, 742 So. 2d 531 (Fla. 3d DCA 1999)