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Lugo v. State2/20/2003
e horrible things [that occur] in our world," and the "evil" of Lugo's "hell on wheels" behavior constitute impermissible character attacks that warrant a new trial. The evidence presented by the State had strong indications that Lugo engaged in gratuitous violence and committed horrible acts. Therefore, we decline to find reversible error in those statements. Moreover, while characterizations employing the terms "evil" and "hell on wheels" may have tested the bounds of permissible argument, we determine that these comments conform to our opinion in Crump v. State, 622 So. 2d 963 (Fla. 1993). In Crump, we concluded that fundamental error did not occur when the prosecutor made an isolated remark during closing argument in the guilt-innocence phase which characterized the defendant as "an `octopus' clouding the water in order to `slither away.'" Id. at 971. As in Crump, relief based on fundamental error is not warranted.
Next, we consider whether the prosecutor's comments describing Schiller as having been "hog tied" and likening his captivity to an "Iranian hostage" situation constituted fundamental error. We considered similar remarks in McDonald. There, the prosecutor in his penalty phase closing argument described in some detail how the victim had been gagged and bound (including being "hog tied") before being drowned. See McDonald, 743 So. 2d at 504. We stated in McDonald that while some of the prosecutor's remarks may have been overly emotional and were "ill-advised," id. at 505, they nevertheless did not constitute fundamental error. The same logic applies in the instant case, because "the prosecutor's comments [did not] so taint the jury's verdict . . . as to warrant a new [trial]." Id.
Finally, we consider the prosecutor's remarks that called Lugo's veracity into question. Lugo claims that the prosecutor persistently called him a "liar" or used variations on that term. Here, Lugo's argument has little merit, as the record reveals a plethora of evidence that he consistently engaged in deceitful practices. Those prevarications ranged from Lugo and Doorbal's concoction of the scheme involving phone lines in India to trick Frank Griga into believing he was dealing with legitimate businessmen, to Lugo's use of false names to further his illegitimate business dealings. The prosecutor's comments in this vein resemble those made by the prosecution in Davis v. State, 698 So. 2d 1182 (Fla. 1997). There, the appellant asserted that the prosecutor engaged in impermissible argument by characterizing the appellant's statements, which had been made to the police, as "bald-faced lies." Id. at 1190. We concluded that the assertion was unavailing, because:
When it is understood from the context of the argument that the charge [of untruthfulness] is made with reference to the evidence, the prosecutor is merely submitting to the jury a conclusion that he or she is arguing can be drawn from the evidence. Id. at 1190.
The same reasoning applies to Lugo's case. In light of the substantial proof of Lugo's deceitful actions, we determine that on the whole the prosecutor's remarks were nothing more than appropriate comments on the evidence. Any error that may have occurred is harmless. We therefore deny relief.
While we deny relief based upon the remarks which were made without objection, we would be remiss if we did not again remind officers of the State that we will not condone improper closing arguments. Here, there was absolutely no need for experienced counsel to walk the line of reversible error by flirting with a "Golden Rule" argument. Even first-year trial attorneys know better than to engage in such behavior, yet a significant case involving enormous judicial and
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