final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin S. Fein, Judge; L.T. Case No.
Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior, Assistant Attorney General, West Palm
Beach, for appellee.
appeal from appellant's conviction for grand theft,
appellant contends that the prosecutor's closing argument
merits reversal on multiple grounds. After the prosecutor
implied to the jury in closing argument that mere presence at
the scene of a crime was sufficient to support a conviction,
the court refused to give appellant's requested
instruction on "mere presence." The trial court
erred in failing to give the appellant's instruction. It
also erred in overruling appellant's objection to the
prosecutor's references to facts beyond the evidence.
Further, the prosecutor referenced facts not in evidence and
made several comments negatively reflecting on
appellant's right to a jury trial. Because we cannot
conclude that the cumulative effect of all of the comments
were harmless beyond a reasonable doubt, we reverse.
2015, the State charged appellant, Jeffrey Gabriel, by
information with one count of grand theft under section
812.014, Florida Statutes (2015), alleging he knowingly
obtained the property of American Express, merchandise at a
value of $300 or more but less than $5, 000. The State also
charged Claudel Thermidor, co-defendant, with criminal use of
personal identification information, grand theft, and
fraudulent use of a credit card. At trial, a detective
testified that he had responded to a home burglary where the
homeowner's American Express card was taken. The
detective contacted American Express, and he learned the card
had been used on the same day as the burglary at several
retail stores about a block away from the home. Surveillance
footage from the stores showed the co-defendant Thermidor,
appellant, and another person checking out of the stores. The
footage caught Thermidor handing the stolen credit card to
the cashier to purchase merchandise, some of which was handed
to Thermidor by appellant.
detective arrested appellant, who gave a statement. He
admitted to being with Thermidor at the stores, claiming he
was shopping with Thermidor because Thermidor owed him money
over a card game. While the detective took fingerprints from
appellant, none matched anything at the scene of the
Thermidor confessed to his participation and testified at
appellant's trial. In consideration of his confession,
the State put him in a pretrial intervention program (PTI).
knew appellant from his neighborhood, but he wasn't
really a friend - more of an acquaintance. Appellant called
him on the day of the crimes, saying he had something to show
Thermidor. Appellant eventually showed him the credit card
that they used in the stores. Appellant did not tell him from
where he got it. It was Thermidor's idea for them to go
shopping with the card. Thermidor's friend, John, went
with them. Appellant gave Thermidor the card to use at the
registers, and Thermidor purchased items, some of which were
handed to him by appellant.
State played the surveillance videos to the jury. Thermidor
identified himself and appellant in the video. In it,
Thermidor is seen handing the credit card to the cashier
while both appellant and Thermidor's friend stand by
cross-examination, Thermidor admitted he entered PTI and
confessed to his crimes with the hopes his charges would be
dropped. He paid restitution to American Express. He admitted
that in his sworn PTI statement, he confessed he used the
stolen card, but he did not mention appellant's
involvement. Thermidor conceded that, as part of PTI, he was
required to cooperate with the State regarding
appellant's prosecution and to testify against appellant.
additional evidence from an American Express representative
was presented, the State rested. The court denied
appellant's motion for judgment of acquittal. He
presented no witnesses. At the charge conference, appellant
requested a "mere presence" instruction, informing
the jury that mere presence at the crime scene is
insufficient to prove participation. The court denied the
appellant's request, but it ruled that appellant could
make that argument during closing. The court ruled that it
would read the standard instruction on principal liability,
If the defendant helped another person or persons [commit]
[attempt to commit] a crime, the defendant is a principal and
must be treated as if [he] [she] had done all the ...