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Lugo v. State2/20/2003
he State's failure to disclose that the medical examiner, Dr. Mittleman, who testified in the guilt-innocence phase of Lugo's trial, had been the subject of an administrative investigation in a case unrelated to Lugo's. We disagree.
Dr. Mittleman was the subject of an administrative, not a criminal , inquiry. The record shows that the investigation concluded that he had failed to follow a recording protocol in reporting some of his findings in an unrelated case-at most, a very minor error. The trial judge declined to grant relief to Lugo because Dr. Mittleman did not opine as to the specific or exclusive cause of death of Griga or Furton. In Breedlove v. State, 580 So. 2d 605 (Fla. 1991), an appellant who had been charged with and convicted of murder alleged that a Brady violation occurred when the State failed to disclose that the detectives to whom the appellant had confessed had engaged in criminal activity (drug conspiracy and drug use) unrelated to the appellant's case. The detectives were subsequently investigated by the internal affairs division of their police department for this alleged criminal activity. We rejected the appellant's claim because it failed to meet the materiality prong of Brady. In the instant case, Dr. Mittleman was subject only to an administrative investigation, and the record establishes that the State never contemplated criminal charges against him. As in Breedlove, we conclude that no Brady violation occurred. Even if the evidence of the administrative investigation of Dr. Mittleman had been made available to the defense, there is no reasonable probability that the outcome of the proceeding would have been different. See id. at 609. We therefore deny relief on this issue.
State's Closing Argument
Lugo asserts that several statements made by the State during its closing argument in the guilt phase constitute fundamental error and warrant relief in the form of a new trial. Though we are concerned with one set of remarks in particular, we nevertheless conclude that relief based on fundamental error is not warranted in this case.
The prosecutor's statements which cause us concern are those related to an asserted "Golden Rule" argument. During her closing argument, the prosecutor addressed the jury as follows:
Imagine with tape over your mouth and a hood over your head, imagine it on Krisztina. Not on yourselves, on Krisztina and what Krisztina is going through.
An error is fundamental in nature when it "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." McDonald, 743 So. 2d at 505. An improper "Golden Rule" argument typically occurs when counsel asks jurors to place themselves in the circumstances of the victim. It extends beyond the evidence and "unduly create , arouse and inflame the sympathy, prejudice and passions of jury to the detriment of the accused." Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998) (quoting Barnes v. State, 58 So. 2d 157, 159 (Fla. 1951)). The prosecutor unmistakably asked the jurors to place themselves in Furton's position, which clearly is error. We reject the State's assertion that the prosecutor's remarks were merely permissible comments on the evidence. A seasoned prosecutor involved in a capital case knows better than to make an improper "Golden Rule" argument. However, because this incident was isolated, and an overwhelming amount of unrebutted evidence exists against Lugo, we determine that the error is, on this record, harmless in nature and therefore deny relief.
Lugo further asserts that the prosecutor's comments about the "gratuitous violence," "th
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