JOHNNY MITCHELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Johnny Mitchell appealed his cocaine sale conviction, challenging two prosecutor comments during closing argument as either comments on his failure to testify or as shifting the burden of proof. The Florida Court of Appeal affirmed the conviction, finding the prosecutor's remarks were fair comment on the evidence and testimony rather than improper burden-shifting.
The court affirmed the conviction, holding that Mitchell's failure to object on the ground of comments on silence in the trial court precluded appellate review of that claim, and the objections actually raised regarding burden-shifting were properly overruled because the prosecutor's remarks were fair comment on the testimony presented and did not impermissibly shift the burden of proof.
[1] A defendant's argument regarding prosecutorial comments on the defendant's silence at trial will not be addressed on appeal if no objection was made in the trial court.
[2] Prosecutorial comments during closing argument that refer to the absence of evidence supporting the defense's theory of misidentification or "crooked cops" are permissibl…
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Join FLexlaw to unlock all legal intelligence“Obviously this was a fair comment on the testimony of the police officers who testified, and a fair response to the defense position.”
Establishes the prosecutor's first remark was permissible fair comment rather than improper burden-shifting
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Join FLexlaw to unlock all legal intelligenceMitchell was charged with sale or delivery of cocaine. He claimed misidentification, arguing that police officers had misidentified him as the seller …
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PER CURIAM.
Johnny Mitchell appeals his conviction for sale or delivery of cocaine. We affirm.
Defendant-appellant “Mitchell argues that two of the prosecutor’s comments during closing argument amounted to comments on the fact that the defendant did not testify at trial. We decline to address this part of the defendant’s argument because no such objection was made in the trial court.*
The actual objections made by the defendant in the trial court were that two statements by the prosecutor amounted to shifting the burden of proof to the defendant. These objections were both properly overruled.
The defendant argued that he had been misidentified as the seller of the cocaine; that the testifying police officers knew that they had misidentified him; but that they were lying on the witness stand in order to cover up their misidentification. Defense counsel had told the jury in opening statement that various police officers would testify and that inconsistencies in their testimony would establish the truth of the defendant’s position. These themes were reiterated by defense counsel in closing argument.
During the State’s closing argument, the State asked, “where is the evidence in this case of crooked cops? You had many cops appear before you on the witness stand.” Obviously this was a fair comment on the testimony of the police officers who testified, and a fair response to the defense position. The objection was properly overruled. Later, the State discussed the elements of possession of cocaine and, after arguing that the State had established that the substance was cocaine, the State said, “The evidence in this case is uncontrovert-ed. There is no material conflict in the evidence.” The defense objected that this was shifting the burden of proof to the defendant. It cannot reasonably be so construed in the circumstances of this case, nor does it run afoul of Rodriguez v. State, 753 So. 2d 29, 38-39 (Fla.2000). See Rich v. State, 756 So. 2d 1095, 1096 & n. 1 (Fla. 4th DCA 2000).
Furthermore, this is not a case in which the defense put on no case. The centerpiece of the defendant’s defense came when the defendant displayed to the jury a large scar he had on his chest which, the defense contended, could not have gone unnoticed because defendant was wearing no shirt during the hand-to-hand drug transaction. The defense argued that the scar had not been mentioned as an identifying feature prior to the time that the defendant was arrested. This established, in the defense’s view, that the defendant had been misidentified.
Under the circumstances, the objections were properly overruled. The objected-to remarks were fair comment and did not constitute impermissible arguments that shifted the burden of proof.
Affirmed.
*
In the circumstances of this case, we fail to see how the remarks the defendant refers to could reasonably be construed as a comment on silence in any event.
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Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003)…uld have misled the jury on the burden <3f proof.” Id. at 1297. Here, we deem the prosecutor’s response as a permissible comment on the evidence and a fair reply to the defense implication that Officer Kelley planted the gun. See Mitchell v. State, 771 So. 2d 596, 597 (Fla. 3d DCA 2000). A prosecutor’s argument should be examined in the context in which it is made. McArthur v. State, 801 So. 2d 1037, 1040 (Fla. 5th DCA 2001); Nelson v. State, 416 So. 2d 899, 900 (Fla. 2d DCA 1982). This is particularly so w…
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Johnson v. State, 917 So. 2d 226 (Fla. 3d DCA 2005)…t in which they were made, we deem the prosecutor’s response as permissible comments on the evidence and a fair reply tailored to respond to the defense’s closing argument. See Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003); Mitchell v. State, 771 So. 2d 596 (Fla. 3d DCA 2000); Vazquez v. State, 635 So. 2d 1088 (Fla. 3d DCA 1994). It is well established that counsel is afforded wide latitude in making arguments to the jury, especially in response to opposing counsel’s improper comments. Schwarck v. Sta…
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Manning v. State, 801 So. 2d 207 (Fla. 4th DCA 2001)…instructed the jury to disregard it. Some objections were overruled, and we find no abuse of discretion in the trial court’s rulings. Other, unobjected to statements were fair comment on the defense case and closing argument. See Mitchell v. State, 771 So. 2d 596, 597 (Fla. 3d DCA 2000); Heuss v. State, 660 So. 2d 1052, 1058 (Fla. 4th DCA 1995), approved, 687 So. 2d 823 (Fla.1996); Henry v. State, 483 So. 2d 860, 861 (Fla. 5th DCA 1986). We have reviewed the entire argument and conclude that any errors wer…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Rodriguez v. State, 753 So. 2d 29 (Fla. 2000)
- Rich v. State, 756 So. 2d 1095 (Fla. 4th DCA 2000)