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Lenz v. State

Florida Court of Appeals, Fourth District

April 25, 2018

DANIEL D. LENZ, Appellant,

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No. 2013CF001569A.

          Carey Haughwout, Public Defender, and Marcy K. Allen, Special Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

          Ciklin, J.

         After his first conviction was reversed due to the admission of improper evidence, Daniel Lenz, the defendant below, was retried and found guilty of crimes involving a child victim. He challenges his conviction and sentence of life imprisonment, raising numerous issues, two of which we find have merit. We agree with the defendant that the trial court erred in overruling a defense objection to the prosecutor's closing argument, which shifted the burden of proof to the defendant. We also find that the trial court erred in denying his peremptory strike of a prospective juror.

         Improper Closing Argument

         While the defendant was in jail awaiting trial, he spoke to his wife (the victim's grandmother) and their telephone conversations were recorded by jail authorities. During closing argument at trial, the prosecutor played the recording of the first phone call the defendant made to his wife, and offered the following closing argument commentary:

And sometimes silence can be deafening. And in this case in this jail call, I think his silence not to comfort her and say, hey, this is a misunderstanding, I didn't do it on purpose, I didn't have a lewd intent, something to that effect, he's silent. I can't help but wonder what has changed. Think about this. This is early on in the case, this is the first jail call. What has changed over the three years, what has changed? I'll tell you what's changed. He's had three years to think about this. He's had three years to think of his story and to explain everything away.

         The prosecutor then played a portion of a recording where the defendant tells his wife he cannot talk about the case over the phone, as "[t]hat can put yourself in jeopardy." The prosecutor made the following statements in conjunction with this recorded clip:

Really? And he was innocent. Why couldn't he talk about the case? Why couldn't he get on the phone and say this is a misunderstanding, why couldn't he say I was tricked by the police, why couldn't he say PTSD kicked in, why couldn't he say all that? That wouldn't put him in jeopardy, not one bit. Not at all. He knows he's guilty, that's why he doesn't want to talk about this case.

         Defense counsel objected, and argued that the statements constituted burden shifting. The trial court overruled the objection: "I mean obviously this is in evidence, but, you know, he's allowed to comment on it. I don't see how it's burden shifting. He's just pointing out that he didn't say certain things."

         We are compelled to once again remind prosecutors and defendants alike that improper closing argument has no place in the lexicon of criminal court trials and is, with a nominal amount of reflection and trial preparation, easy to avoid. We once again provide a refresher. We first recognize that "[i]t is within the court's discretion to control the comments made to a jury, and a court's ruling will be sustained on review absent an abuse of discretion." Salazar v. State, 991 So.2d 364, 377 (Fla. 2008) (citation omitted). A burden-shifting comment is reviewed for harmless error. See Paul v. State, 980 So.2d 1282, 1283 (Fla. 4th DCA 2008). "It is well settled that due process requires the state to prove every element of a crime beyond a reasonable doubt." Warmington v. State, 149 So.3d 648, 652 (Fla. 2014) (citation omitted). "For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Id. (citation omitted). Thus, "the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence." Id. (citation omitted). "Comments on silence may also equate to burden-shifting comments[.]" Gleason v. State, 188 So.3d 35, 38 (Fla. 4th DCA 2016).

         The Fifth District summarized the types of comments our courts have held improperly shift the ...

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