ROBERT J. GROEBNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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.
Appellant Groebner was convicted by jury of grand larceny and sentenced to five years imprisonment. The appellate court reversed, holding that the cumulative effect of improper prosecutorial comments, character attacks, and prejudicial questioning—despite the trial court's attempt to cure the errors through objections and jury instructions—deprived the defendant of a fair trial.
The court held that the defendant did not receive a fair trial. Although the trial judge attempted to repair the damage through sustained objections and cautionary instructions, such instructions could not cure the cumulative prejudicial effect of the prosecutor's improper conduct in opening statement, witness examination, and closing argument.
[1] A prosecutor may not attack a defendant's character in an opening statement.
[2] Evidence of a defendant's moral character and specific acts of misconduct occurring after the charged events is irrelevant and prejudicial.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The improper remarks of the prosecuting officer in this case were of such a character that neither objection nor curative instruction could entirely destroy their sinister influence.”
States the court's holding that the cumulative prejudicial effect of prosecutorial misconduct could not be cured by jury instructions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGroebner was tried for grand larceny. During the prosecution's case, evidence was introduced regarding the defendant's moral character, including test…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Improper Prosecutorial Comment cases and more on FLexlaw
PEARSON, Judge.
The defendant was found guilty by a jury of grand larceny and sentenced to serve five years in the state prison.
On this appeal, he raises the question of whether he had a fair trial under the Constitution and laws of the State of Florida.
We hold that he did not receive a fair trial and reverse.
The controlling question presented is whether the cumulative effect of repeated improper comments and improper questions by the assistant state attorney was such that the jury verdict may have been based upon inadmissible evidence or upon passion and prejudice.
Although the trial judge tried manfully to repair the damage by sustaining objections and in some cases giving cautionary instructions to the jury, we hold that the instructions cannot, in this case, be held to have cured the errors.
Cf.
Barnes v. State, 58 So. 2d 157 (Fla.1951); and Adams v. State, 192 So. 2d 762 (Fla.1966).
The assistant state attorney, in opening statement, characterized the defendant as the “. . . most slick conartist who has operated in South Florida.” A motion for mistrial was made and denied. A prosecutor may not in opening statement attack the defendant’s character. See Post v. State, 315 So. 2d 230 (Fla. 2d DCA 1975); and cf.
Brown v. State, 284 So. 2d 453 (Fla. 3d DCA 1973).
The prosecuting witness was allowed to elicit evidence of the defendant’s moral character and of a specific act of misconduct which allegedly took place after the events which gave rise to the instant charge.
She was allowed to testify that the defendant had struck her and also that he was excommunicated by the Mormon Church.
The State was obdurate in eliciting this testimony. A motion for mistrial was made and denied.
The evidence was irrelevant and prejudicial.
See Mann v. State, 22 Fla. 600 (Fla.1886); and Simmons v. Wainwright, 271 So. 2d 464 (Fla. 1st DCA 1973).
In cross-examination, the assistant state attorney questioned the defendant as follows: # * * * * * “Q.
Have you ever been convicted of a crime? A. Yes, I have. Q.
Do you want to tell me about it?
MR. LEVY: I object to the form of that question.
THE COURT: Sustained.
BY MR. KOLSKY: Q.
Where and when?
MR. LEVY: Same objection.
THE COURT: Sustained.
Let’s confer just a moment, please. (Thereupon, a side bar conference was had out of the hearing of the jury and the reporter, after which the following proceedings were had:) BY MR. KOLSKY: Q.
How many times have you been convicted of a crime? A. Four. [*96] MR. LEVY: Could we approach the Bench for a minute with the reporter? (Thereupon, the following proceedings were had at side bar out of the presence of the jury:) MR. LEVY: Your Honor, I would object to the question that was asked.
The Court said to rephrase and told him not to ask why and when and the circumstances of any convictions.
THE COURT: I sustained the objection.
Further, sf: * if: * s}s “Q. I have just a few short questions, Mr. Groebner. Did you ever try to kill your former wife by running her off the road with your car? A. No, I did not. Q.
On how many occasions didn’t you do that?”
* * * * *
Isn’t it a fact, Mr. Groebner, that you took that thousand dollars that you received from Morningside Pawn Brokers and gambled that money?”
See Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969), as to the duty of a prosecuting attorney.
In closing argument, the assistant state attorney commented: “MR. KOLSKY: ‘Extortionists, venomous, burglars’ — Judy Groebner and Nancy Durkee, they put him away. “A leopard never changes its spots.
He has been convicted of crimes four times, and I tell you a leopard never changes its spots.”
The improper remarks of the prosecuting officer in this case were of such a character that neither objection nor curative instruction could entirely destroy their sinister influence.
Reversed for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Denmark v. State, 927 So. 2d 1079 (Fla. 2d DCA 2006)…s objections. Unfortunately, the prosecutor persisted. The trial court denied Mr. Denmark’s mistrial motions. Although no curative instruction was requested or given, any such instruction would not have cured the error. See, e.g., Groebner v. State, 342 So. 2d 94, 95 (Fla. 3d DCA 1977) (holding improper remarks of prosecutor were of such character that neither objection nor curative instruction could entirely destroy their sinister influence; mistrial motion should have been granted); Fischman v. Suen, 672 S…
-
Sharp v. Lewis, 367 So. 2d 714 (Fla. 3d DCA 1979)…pellets from a shot gun, cause their damage not necessarily from the effect of any one pellet but from the combined effect of all the pellets over one specific area of the target. See Barnes v. State, 58 So. 2d 157 (Fla.1951); and Groebner v. State, 342 So. 2d 94 (Fla.3d DCA 1977). In this case, however, the allegedly cumulative errors, as a whole, took place at various times throughout the four-day trial and were not concentrated in any one time period. The second sub-category, “machine gun” error, is simpl…1 / 2
-
Green v. ED Ricke & Sons, Inc., 438 So. 2d 25 (Fla. 3d DCA 1983)…ispersed throughout a long trial, if they are so strategic in their nature and placement that their cumulative effect upon the jury can be measured. See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Groebner v. State, 342 So. 2d 94 (Fla. 3d DCA 1977). The “empty chair” arguments in this case violated not only the pretrial order, but also the spirit of Section 768.041(3), Florida Statutes (1981), which provides: The fact of ... a release or covenant not to sue, or that any def…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mann v. State, 22 Fla. 600 (Fla. 1886)
- Barnes v. State, 58 So. 2d 157 (Fla. 1952)
- Kirk v. State, 227 So. 2d 40 (Fla. 4th DCA 1969)
- Simmons v. Louie L. Wainwright, 271 So. 2d 464 (Fla. 1st DCA 1973)
- Adams v. State, 192 So. 2d 762 (Fla. 1966)
- Post v. State, 315 So. 2d 230 (Fla. 2d DCA 1975)
- Brown v. State, 284 So. 2d 453 (Fla. 3d DCA 1973)