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Brown v. State5/18/2001
Appeal from the Circuit Court for Hillsborough County; Ralph Steinberg, Judge.
Johnny Brown appeals his conviction and sentence for opposing a law enforcement officer with violence. Brown raises three issues on appeal, only one of which has merit. On that issue, we agree with Brown that his conviction and sentence must be reversed because of the improper closing arguments of the prosecutor.
While driving in Tampa, Brown rear ended another vehicle. The two drivers stopped, examined their vehicles, and determined the damage was inconsequential. As they started to leave the scene, two Tampa police officers, who had apparently witnessed the accident, approached the two drivers. After a discussion with Brown, one officer decided to arrest him for DUI. The trial testimony of the officers, Brown, and the defense witnesses varied significantly concerning what happened following the decision to arrest Brown and how Brown's arrest occurred. Although the State initially charged Brown with numerous offenses arising out of this arrest, the State proceeded to trial on only the charges of opposing an officer with violence and attempted unlawful taking of a firearm from a law enforcement officer. The jury returned a guilty verdict on the opposing charge and a not guilty verdict on the unlawful taking charge.
While the State correctly points out that Brown's attorney failed to object to the numerous improper comments made by the prosecutor in closing argument, we must look at the entire trial record and adhere to the established law that "when the prosecutorial argument taken as a whole is of such a character that neither rebuke nor retraction may entirely destroy their sinister influence . . . a new trial should be granted, regardless of the lack of objection or exception." DeFreitas v. State, 701 So. 2d 593, 596 (Fla. 4th DCA 1997) (quoting Ryan v. State, 457 So. 2d 1084, 1091 (Fla. 4th DCA 1984)). See also Caraballo v. State, 762 So. 2d 542, 547 (Fla. 5th DCA 2000) (holding that fundamental error occurs in closing when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury").
The prosecutor's closing argument in this case reached the level that requires reversal. During closing arguments, the prosecutor made a number of improper arguments, including improper vouching for the credibility of police officers, improper attacks on individual witnesses, commenting on and arguing facts not in evidence, improper personalizing of the prosecutor, blatant appeals to the jurors' emotions, improper attacks on defense counsel, improper golden rule arguments, and an improper attack on witnesses and the defendant by arguing that anyone convicted of a felony is a liar. All of these improper arguments made a mockery of the "neutral arena" in which a trial should be held. Ruiz v. State, 743 So. 2d 1, 4 (Fla. 1999) ("A criminal trial is a neutral arena wherein both sides place evidence for the jury's consideration; the role of counsel in closing argument is to assist the jury in analyzing the evidence, not to obscure the jury's view with personal opinion, emotion, and non-record evidence.").
The argument in this case is of such a character that we are compelled to reverse. While no one comment in isolation would have been enough to warrant a new trial, all of the comments together constitute a closing argument sufficiently improper so as to warrant a new trial.
Reversed and remanded.
DAVIS, J., and DANAHY, PAUL W., (SENIOR) JUDGE, Concur.
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