NATHANIEL CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nathaniel Carter was convicted of robbery by jury verdict, but the Florida District Court of Appeal reversed and remanded for a new trial due to improper prosecutorial misconduct during closing argument. The prosecutor attacked defense counsel's integrity and motives in ways that violated fundamental fairness and due process protections.
The conviction must be reversed and the case remanded for a new trial. The prosecutor's conduct was improper and disrespectful of the constitutional right to counsel, and the trial court's curative instruction was insufficient to remedy the prejudicial effect of the attack on opposing counsel.
[1] A prosecutor's improper comments during closing arguments that attack opposing counsel's integrity or suggest criminal conduct can constitute reversible error.
[2] A prosecutor's statement that defense counsel is attempting to mislead the jury and that the extent to which some attorneys go to represent defendants is "almost criminal…
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Join FLexlaw to unlock all legal intelligence“The right of a person accused of a crime to be represented by counsel and to be fairly tried is basic to the concept of due process.”
Establishes the fundamental constitutional principle at stake in the case
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Join FLexlaw to unlock all legal intelligenceCarter was tried for robbery and convicted by jury verdict in Escambia County Circuit Court. During closing argument, the prosecutor criticized defens…
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PER CURIAM.
This cause is before us on appeal from the judgment of the Circuit Court, Escam-bia County, entered on a jury verdict, finding the Defendant guilty of robbery. The conviction must be reversed and the cause remanded for a new trial due to the conduct of the prosecuting attorney in the course of his closing argument to the jury.
The prosecuting attorney in closing argument told the jury that Defendant’s attorney was trying to “distort the evidence” and then stated:
“MR. RON JOHNSON: She’s trying to mislead you. That’s her job. She’s been appointed to be the defendant’s mouthpiece, and she’s done it. But, remember that when you return to the jury room. It’s almost criminal sometimes the extent these people go to—
MRS. PTOMEY: (Interposing) I object, Your Honor. MR. JOHNSON: To represent these criminals.
JUDGE: Young man.
MR. JOHNSON: Yes, Your Honor. JUDGE: You’re not to reply to counsel.
MR. JOHNSON: I’m sorry, Your Honor.”
[At this point the jury was excused for conference on Defendant’s motion for a mistrial, and the following occurred.]
“JUDGE: It’s improper. You can’t comment on her morals and her actions.
MR. JOHNSON: Your Honor, I’m not commenting—
JUDGE: (Interposing) You said, ‘It’s almost criminal sometimes the extent these people go to to defend these criminals.’
MR. JOHNSON: But I’m not accusing her of anything. I said, ‘almost’; I’m not saying that she is.
JUDGE: Are you saying she’s almost a criminal?
MR. JOHNSON: I’m saying it’s almost criminal the extent sometimes these people go to.
JUDGE: I deny the motion for a mistrial, but I’m going to instruct the State Attorney to apologize and to explain to the jury that he didn’t mean that the defense counsel was criminal — or almost criminal.
MR. JOHNSON: You want me to apologize to Mrs. Ptomey, to the jury—
JUDGE: (Interposing) Yes.
MR. JOHNSON: And explain to them what I meant by the argument?
JUDGE: I want to make sure the jury hears that you’re not accusing her of any criminal act or almost criminal act in representing a criminal. MR. JOHNSON: Gentlemen and Mrs. Stattem of the jury, His Honor has instructed me I shouldn’t have been quite so rough with the young lady. I apologize to you—
MRS. PTOMEY: (Interposing) I object.
MR. JOHNSON: And I apologize to the lady—
JUDGE: (Interposing) That’s all right. Go ahead. The objection is overruled.
MR. JOHNSON: And I apologize to the Court if my argument is improper in any kind of manner .
Well, maybe I should apologize again to the defendant’s lawyer that I didn’t have a bunch of little people running around out there with tape measures and yard sticks trying to measure his height . . ”
The public interest is ill served by conduct such as that exhibited by the prosecuting attorney in this case. The right of a person accused of a crime to be represented by counsel and to be fairly tried is basic to the concept of due process. Lack of respect for this essential requirement by an officer of the court cannot be tolerated, even at the expense of requiring a new trial. Here there is no indication in the record of any genuine effort by counsel to remedy the prejudicial effect of his attack on opposing counsel. Further, there was no effective curative instruction by the court.
Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.
BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.
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The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)…0 So. 2d 42, 43 (Fla. 1st DCA 1973) (prosecutor’s argument about “how defense lawyers operate”); Simpson v. State, 352 So. 2d 125, 126 (Fla. 1st DCA 1977) (prosecutor’s reference to “one of the favorite tricks of a defense lawyer”); Carter v. State, 356 So. 2d 67 (Fla. 1st DCA 1978) (prosecutor’s argument that “[s]he’s been appointed to be the defendant’s mouthpiece . . It’s almost criminal sometimes the extent these people go to . .to represent these criminals”). .Trahan v. Cook, 288 Ala. 704, 265 So. 2d 1…
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Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)…which reached their apogee (or nadir) when the jurors were asked whether they would buy a used car from him — were, as is now acknowledged by the state, utterly and grossly improper.1 Adams v. State, [*16] 192 So. 2d 762 (Fla.1966); Carter v. State, 356 So. 2d 67 (Fla. 1st DCA 1978); Reed v. State, 333 So. 2d 524 (Fla. 1st DCA 1976); see Peterson v. State, 376 So. 2d 1230, 1233 (Fla. 4th DCA 1979). While the prejudicial effect of these remarks might have been dissipated if, as required, the trial judge had e…
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Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998)…Rosso v. State, 505 So. 2d 611, 612 (Fla. 3d DCA 1987); Briggs v. State, 455 So. 2d 519, 520-21 (Fla. 1st DCA 1984). See also Alvarez v. State, 574 So. 2d 1119 (Fla. 3d DCA 1991); Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982); Carter v. State, 356 So. 2d 67 (Fla. 1st DCA 1978). The most disquieting aspect of this impropriety was the prosecutor’s response to the defendant’s motion for new trial subsequent to his conviction. The prosecutor explained his position as follows: Now I got to admit I got a li…
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