TODD PAYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2017-12-21
No. CASE NO. 1D16-4115
JAY and M.K. THOMAS, JJ., CONCUR.
233 So. 3d 512 Florida District Court of Appeal, First District (2017) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Todd Payne appeals his convictions for possession of cannabis and cocaine, challenging two statements made by the prosecutor during closing arguments. The Florida First District Court of Appeal affirms the convictions, finding that while one prosecutorial comment was unwise word choice and another was improper, neither error was sufficiently prejudicial to warrant reversal or mistrial.


Holding

The Court affirmed the convictions, holding that the first prosecutorial comment, while using unwise word choice, was not improper as prosecutors may highlight the lack of contradictory evidence; the second comment was improper but not so prejudicial as to vitiate the entire trial, particularly where the trial court sustained the objection and offered a curative instruction.


Headnotes

[1] A prosecutor may properly highlight the lack of contradictory evidence presented by the defense and suggest conclusions the jury should draw from the evidence presented.

[2] A prosecutor's comment on the lack of contradictory evidence is not improper, even if the word 'rebut' is used unwisely, as long as the state has met its burden of proof.

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Key Quotes

“A prosecutor may properly highlight the lack of contradictory evidence and state what conclusions the jury should make.”

Establishes the propriety of the prosecution's argument regarding the forensic chemist's unrebutted testimony about cocaine identification

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Facts & Procedural History

Payne was a passenger in a vehicle stopped by Deputy Dean on a dirt road at night. When asked to spread his legs during a search, a bag containing can…

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Opinion of the Court
WINOKUR, J.

WINOKUR, J.

Todd Payne appeals his convictions and sentences for possession of cannabis and possession of cocaine. We affirm, but write to address two comments made during the State’s closing arguments.

Todd Payne was the passenger in a vehicle driving on a dirt road at night when it was pulled over by Deputy Jeremy Dean. Deputy Dean placed the driver in his patrol car and then asked Payne to exit the vehicle and walk to the back of his patrol car. After Deputy Dean asked if Payne had anything the deputy should be aware of, Payne responded in the negative and offered to be searched. After initially finding nothing, Deputy Dean asked Payne to spread his legs, and a bag containing cannabis and cocaine was subsequently found on the ground. .

Deputy Dean testified that he saw the bag fall from Payne’s pants onto the ground when Payne spread his legs. The defense cross-examined the deputy as to his purported use of a flashlight during the search, as his written reports and deposition did not mention a flashlight. Deputy Dean also testified that his patrol car’s video camera was not functioning at the time of the arrest, and that video of the incident from his personal body camera was accidentally deleted when he downloaded new computer software. Deputy Dean -stated that he never attempted to take fingerprints from the bag of drugs found.

The State also called a forensic chemist to testify, who identified one of the sub*514stances recovered as cocaine. The defense called no witnesses.

I.

During the State’s initial closing statement, the prosecutor discussed the elements necessary to convict Payne of possession of cocaine, including the third element, that the substance was in fact cocaine. After the prosecutor reviewed the testimony of the forensic chemist, he concluded, “As to that element the State has met its burden. And, in part, the State would argue that you didn’t hear any contradictory testimony or evidence to rebut the fact.” The defense immediately asked to approach, 'and ¡moved for a mistrial during a sidebar conference, arguing that the comment shifted the burden to Payne to prove that the substance was not cocaine and constituted a comment on his right to remain silent. The trial court denied the mistrial motion, but at the request of the defense, gave a curative instruction to the jury regarding the presumption of innocence and Payne’s right to remain silent.

The prosecutor’s statement was not improper. While using the word “rebut” in this context is unwise, this poor word choice does not overcome the general rule that a prosecutor may properly highlight the lack of contradictory evidence and state what conclusions the jury should make. See Bell v. State, 108 So.3d 639, 647-48 (Fla. 2013). The State was free to review the forensic chemist’s testimony that the substance was cocaine, and remind the jury that there was no evidence offered by the defense to suggest that it was not. Regardless, had the comment been improper, it was not “so prejudicial as to vitiate the entire trial” for a mistrial to be appropriate, especially in light of the curative instruction given to the jury. England v. State, 940 So.2d 389, 402 (Fla. 2006).

II.

During Payne’s ’ closing arguments, the defense discussed the omissions and inconsistencies in Deputy Dean’s earlier accounts of the incident compared to his testimony (e.g., whether he used a flashlight during the search), the absence of any videotapes or recordings, the lack of fingerprints taken from the drugs, and the dark conditions and dirt road where the drugs were found. The defense attacked the deputy’s credibility and argued that the drugs were likely on the ground before Payne and the deputy arrived at the scene.

During the State’s rebuttal closing argument, the prosecutor justified Députy Dean’s omissions in his written report and deposition, stating the following:

You didn’t see a copy of the report. All the evidence is before you. Deputy Dean may or may not have noted in the report the- exact time and the exact weather conditions, but those aren’t relevant, and it doesn’t really matter whether they’re in the report because at the end of the day, he’s a sworn law enforcement officer, tasked with upholding justice ... and he has testified.

The defense immediately objected, and argued that the prosecutor’s statement improperly urged the jury to give special credence to the testimony of a police officer. The trial judge stated, “I’m going to sustain it to this extent: I think you may have put some of these issues in motion. [Prosecutor], just move on from, here as far as that. But beyond that, I think if you were to do too much more, I think you’re moving into a realm that I see [the defense’s] position.” Payne again motioned for a mistrial. The trial court denied the motion, but asked the defense if it would like a curative instruction. The defense replied, “No, sir.”

*515Suggesting that Deputy Dean should be believed because he is a “sworn law enforcement officer, tasked with upholding justice” is improper argument. See Johnson v. State, 177 So.3d 1005, 1008 (Fla. 1st DGA 2015); Williams v. State, 673 So.2d 974, 975 (Fla. 1st DCA 1996). While the meaning of the trial judge’s response to the objection is arguable, we find that he sustained the objection. The trial judge announced that he sustained the. objection to some “extent,” directed the prosecutor to move on from that argument, and asked the defense if it wanted a curative instruction. If the trial judge did not sustain the objection, and thought the comment was proper, logic dictates that" he would not have offered the defense a curár tive instruction.

As the trial court sustained Payne’s objection, the only question is whether, it erred in denying his motion for mistrial. “A motion for a mistrial should only be' granted when an error is so prejudicial aS to vitiate the entire trial.” England, 940 So.2d at 401-02; see also Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999) (“A decision on a motion for a mistrial is within the discretion of the trial judge and such a motion should be granted only in the case of absolute necessity.”). A trial court’s ruling on a motion for mistrial is reviewed for abuse of discretion. See Salazar v. State, 991 So.2d 364, 371-72 (Fla. 2008). We conclude that the trial court’s denial of the motion for mistrial and offer of a curative instruction was within its discretion and did not result in Payne receiving an unfair trial.

AFFIRMED.

JAY and M.K. THOMAS, JJ., CONCUR.


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Citator

Cited By

  • Lai v. State, 251 So. 3d 333 (Fla. 1st DCA 2018)
  • Byrd v. State (Fla. 1st DCA 2024)
    …ing on a motion for mistrial is within the trial court’s discretion, but crucially, a mistrial is appropriate only where the error is so prejudicial as to “vitiate the entire trial.” England v. State, 940 So. 2d 389, 402 (Fla. 2006); Payne v. State, 233 So. 3d 512, 515 (Fla. 1st DCA 2017). This court has explained the propriety of a mistrial as follows: “In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised…
  • …ers in the case were credible or that he was not pressuring witnesses to testify, he could not suggest that State Attorneys, police officers, or other government officials do not lie based on the nature of their positions. Cf. Payne v. State, 233 So. 3d 512, 515 (Fla. 1st DCA 2017) (noting that it was improper to suggest that a deputy should be believed because he is a sworn law enforcement officer in response to defense attacking deputy’s credibility). Thus, the trial court properly sustained the obje…

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