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Cartwright v. State11/3/2004
n the home red-handed. He was taken into custody. But before anything happened, before he was formally charged by the Office of the State's Attorney, sworn statements were taken to assure the police agency and the State Attorney's office that this prosecution is being put forth in good faith.
Courts have repeatedly condemned such "good faith" comments. See Harris v. State, 570 So.2d 397 (Fla. 3d DCA 1990)(holding that the prosecutor exceeded acceptable limits in responding to defense counsel's argument of bad-faith prosecution by arguing to the jury her personal opinion that information must be believed because it had been sworn to as being filed in good faith by the prosecution); see also Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990).
Similarly, an argument that the state charges only those who are guilty is improper. See Ruiz v. State, 743 So.2d 1, 5 (Fla.1999)(finding that the state engaged in improper argument by implying that "[i]f the defendant wasn't guilty, he wouldn't be here"); Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002)(finding improper the state's remarks that it had charged the right defendant and only brought charges it could prove).
In order to require a new trial, a prosecutor's comments must either deprive the defendant of a fair trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. See Anderson v. State, 863 So.2d 169, 187 (Fla.2003), cert. denied, --- U.S. ----, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004). However, we look to the record as a whole and consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt. See Martinez v. State, 761 So.2d 1074, 1083-84 (Fla.2000).
*5 In this case, the prosecutor's improper comments about the good faith of the state's prosecution (preserved by the defense's timely objection), coupled with the prosecutor's remarks pointing out similarities in the two burglaries and suggesting that the defendant committed both (not preserved by timely objection), together constitute error that we cannot conclude is harmless beyond a reasonable doubt. The jury was instructed on the lesser included offense of trespass. But for the errors cited, a jury could reasonably have returned a verdict of trespass or not guilty, in light of the defendant's testimony that he had permission from the previous resident to be in the apartment, the defendant's unusual behavior in removing his clothes and shoes and casually remaining there, and evidence that the condominium had not been ransacked.
We therefore reverse the judgment and sentence and remand this case for a new trial.
REVERSED and REMANDED.
GUNTHER and STEVENSON JJ., concur.
FN1. Williams v. State, 110 So.2d 654 (Fla.1959).
FN2. The defendant did not object to these comments or move for a mistrial.
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