final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No.
Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
Defendant appeals his conviction and sentence of life
imprisonment, a sentence imposed after he was found guilty on
one count of carjacking with a firearm, three counts of
robbery with a firearm, and a fifth count of possession of a
firearm by a convicted felon.
raises three issues on appeal, and we affirm without further
discussion as to the first two. As for the third issue, we
affirm, and write to distinguish the State's comments
during closing in this case, which are discussed below, from
the comments made in the three cases upon which the Defendant
relies. See Ruiz v. State, 743 So.2d 1 (Fla. 1999),
Gore v. State, 719 So.2d 1197 (Fla. 1998), and
Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014).
Defendant challenges multiple comments the State made during
its closing argument, arguing the court abused its discretion
in overruling his objections to each. These statements
include argument by the State that to accept the
Defendant's theory, you had to conclude that the officer
"not only got all of that wrong, but so did the victims,
" that the officer "was completely wrong in his
entire testimony of this case, " and that the officer
"completely made up his turn of events." The State
also noted during its closing argument that the Defendant is
a "three-time convicted felon who's also been
convicted of lying, giving a false statement." Finally,
the State argued to the jury "that [this crime] was
committed by someone who thinks that they can get away with
the comments in this case distinguishable from the comments
made in the cases relied on by the Defendant.
Ruiz, the prosecutor equated the defendant to
Pinocchio. See 743 So.2d at 5. Later, during
sentencing, she gave personal stories of her father, a
physician and commander in the military during Operation
Desert Storm, who was dying of brain cancer. Id. She
equated her father's "duty" to serve despite
the hardships of dying of cancer with that of the
"duty" imposed on jurors to sentence defendant to
"the ultimate sentence." Id. at 6-7. Our
supreme court found these comments "crossed the line of
acceptable advocacy by a wide margin, " and stated:
This blatant appeal to jurors' emotions was improper for
a number of reasons: it personalized the prosecutor in the
eyes of the jury and gained sympathy for the prosecutor and
her family; it contrasted the defendant (who at that point
had been convicted of murder) unfavorably with [the
prosecutor's] heroic and dutiful father; it put before
the jury new evidence highly favorable to the prosecutor; it
exempted this new evidence from admissibility requirements
and from the crucible of cross-examination; and most
important, it equated [the prosecutor's] father's
noble sacrifice for his country with the jury's moral
duty to sentence [the defendant] to death.
Id. at 7, 9.
in Gore, our supreme court classified the
prosecutor's behavior as "antithetical to his
responsibilities as an officer of the court." 719 So.2d
at 1202. During cross-examination, the prosecutor stated on
the record that "you know what, you're right, I am
[trying to kill you], because somebody who does what you
do deserves to die." Id. at 1201 (emphasis
supplied). The prosecutor also was described as engaging in
"needless sarcasm" and remarked "Oh, Gore
is a Jewish name? What did you have for Passover, a bunch of
Matzo this year?" Id. (emphasis in
original). Later, during closing argument, the prosecutor
told the jury that "there's a lot of things I can
say or can't say, but there's one thing the Judge
can't ever make me say and that is he can never make
me say that's [the defendant is] a
human being." Id. (emphasis added).
also contains comments far more egregious than the comments
during closing argument in this case. The comments in
Crew include: "There isn't a moralistic
thing about the defendant. Not one. . . . Please. The
defendant doesn't have a moralistic thing about him. Not
one. . . . The defendant is nothing more than a hopeless old
crack addict . . . ." Crew, 146 So.3d at
104-05. Later, the prosecutor stated that "this is a
person who has a limitation on what's wrong and
what's right? No. Not at all." Id. In lieu
of referring to the defendant by his name or defendant, the
prosecutor used a different term, "crackhead, "
stating: "[A]nd so that crackhead, that crackhead was
all in . . . . [He] got high off of ten or 20, little ...