final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 12-11242, Rodolfo Ruiz, Judge.
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Jill D. Kramer, Assistant
Attorney General, for appellee.
EMAS, FERNANDEZ and LUCK, JJ.
Lammons appeals his conviction and sentence for armed
manslaughter, raising one issue. Lammons contends his
conviction must be reversed because the state denigrated the
defense during the rebuttal closing argument.
after his arrest, gave a video-recorded statement where he
confessed to killing the victim. His able counsel spent a
good deal of his closing argument attacking the interrogation
techniques law enforcement used to get the confession, and
argued to the jury that the confession was coerced. In
response, the state argued in its rebuttal closing:
I said the defense counsel talks about words. He tells you
what a good cop would say; he tells you what the state
attorney's going to say. And he uses words to make you
have doubt. He says, "chained to a chair, " instead
of handcuffed. He says, scheming to get a confession, "
Instead of either of them doing their jobs, "storms out
of the room, " instead of "I picked up my things
and walked out." It's good lawyering. It's a
objected to the trial court, and argues on appeal, that
calling defense counsel's attack on the voluntariness of
the confession a "tactic" improperly denigrated the
defense. We tend to agree that suggesting counsel's
defense theory was a good lawyering tactic was improper.
See Cardona v. State, 185 So.3d 514, 523-24 (Fla.
2016) (accusing defense of using "diversionary
tactics" was an improper denigration of defense
counsel); Mercury Ins. Co. of Fla. v. Moreta, 957
So.2d 1242, 1251 (Fla. 2d DCA 2007) (concluding that
"opposing counsel's criticism of Mercury's
alleged litigation tactics and practices was not based on
matters in evidence"); Harris v. State, 414
So.2d 557 (Fla. 3d DCA 1982) (reversing conviction and
ordering new trial based on four instances of prosecutor
misconduct, including reference to victim's tearful
breakdown as "due to tactics of defense counsel");
see also Chase v. Berbary, 404 F.Supp.2d 457, 467
(W.D.N.Y. 2005) (finding improper prosecutor's closing
argument that "[t]here are typical defense tactics and
[defense counsel] employed them all, " although
concluding on habeas review that the comments did not deprive
the defendant of a fair trial); People v. Manier,
197 P.3d 254, 258 (Colo.App. 2008) (finding improper
denigration prosecutor's comment regarding "common
defense attorney tactic[s], " although concluding the
unpreserved error was not plain); People v. Adams,
511 N.Y.S.2d 548 (N.Y.App.Div. 1987) ("We disapprove of
several of the remarks made by the prosecutor during his
summation which tended to denigrate the defense counsel's
trial tactics."); State v. Clemons, 696 N.E.2d
1009, 1023 (Ohio 1998) (finding improper denigration when the
prosecutor commented, "You remember the evidence you
heard and I suspect I will be continually interrupted
throughout this closing argument. It's kind of a tactic
defense attorneys are taught, " but concluding it was
conclude beyond a reasonable doubt, however, that any error
was harmless in that it did not contribute to the verdict.
See Evans v. State, 177 So.3d 1219, 1234 (Fla. 2015)
("For those closing arguments where the defense objected
to improper comments and the trial court erroneously
overruled defense counsel's objection, we apply a
harmless error test."). We find the comment did not
contribute to the verdict, first, because it was isolated and
made up only a small part of the closing argument. The state
did not repeat the "tactic" comment before or after
the objection, and did not make it a theme or feature of its
rebuttal close. The remark was one word in forty-three pages
of the state's closing argument. See Bailey v.
State, 199 So.3d 304, 306 (Fla. 3d DCA 2016)
("While we find this comment by the prosecutor to be
improper and unnecessary 'typification' of the
defendant, we find that it does not rise to the level of
reversible error for several reasons. . . . [T]he improper
comment constituted an isolated occurrence during the course
of the entire final argument." (citations omitted));
Wellons v. State, 87 So.3d 1223, 1225 (Fla. 3d DCA
2012) ("Having reviewed the record, including the
forty-one transcript pages of the State's closing
argument, we conclude that the trial court did not abuse its
discretion in denying the motion for mistrial. The isolated
comment made by the prosecutor during closing, while
certainly improper, was, in this case, harmless error."
while the comment was directed at defense counsel's
attack on the voluntariness of the video-recorded confession
taken at the police department, there was a second, earlier
confession the defendant made at the time of his arrest. The
"tactic" comment did not impact the second
confession and the other overwhelming evidence in the case.
See Lugo v. State, 845 So.2d 74, 107 (Fla. 2003)
("A seasoned prosecutor involved in a capital case knows
better than to make an improper 'Golden Rule'
argument. However, because this incident was isolated, and an
overwhelming amount of unrebutted evidence exists against
Lugo, we determine that the error is, on this record,
harmless in nature and therefore deny relief.");
Williams v. State, 10 So.3d 218, 218 (Fla. 3d DCA
2009) ("The issue in this case is whether the trial
court abused its discretion by overruling defense
counsel's objections to statements made during the
State's closing argument and denying the defendant's
motions for mistrial following these statements. While we
find that the statements were improper, we affirm the
defendant's convictions because, based on the
overwhelming evidence of guilt, the error was
the jury was properly instructed that it was not to consider
the attorneys' statements as evidence. At the beginning
of the case, the trial court told the jury that "[w]hat
the lawyers say is not evidence, and you should not consider
it as such." And, again, just before the closing
arguments, the trial court reminded the jurors "that
what the attorneys say is not evidence, and it is not your
instruction on the law." See Zack v. State, 911
So.2d 1190, 1209 (Fla. 2005) ("Even if the admission of
this evidence was error, it was harmless. The prosecutor did
not argue Zack's alleged hatred of women in closing
argument. Additionally, the trial court properly instructed
the jurors as to the aggravating factors they could consider.
Thus, even if Dr. McClaren's testimony was improperly
admitted, any error would be harmless beyond a reasonable
doubt." (citation omitted)); Almeida v. State,
748 So.2d 922, 927 (Fla. 1999) (finding closing argument
error harmless, in part, because the trial court instructed
the jury that "what the lawyers say is neither evidence
the jury was not swayed by the state's comment given its
lesser-included offense verdict. Lammons was charged with,
and the state argued that he should be convicted of,
second-degree murder, but the jury came back with the
lesser-included offense of manslaughter. See St. Louis v.
State, 985 So.2d 16, 17-18 (Fla. 4th DCA 2008) ("In
affirming, our court necessarily rejected the contention that
the closing argument comments evoking an appeal to sympathy
were so damaging as to deprive the defendant of a
fundamentally fair trial. There was copious evidence of the
defendant's guilt, and the jury actually ...