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Fountain v. State

Florida Court of Appeals, First District

July 9, 2019

Daniel Thomas Fountain, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge.

          Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

          Jay, J.

         Appellant has appealed his judgment and sentences for shooting at or into an occupied vehicle and aggravated assault by threat with a deadly weapon. See §§ 790.19 & 784.021(1)(a), Fla. Stat. (2016). We affirm both points raised by Appellant. Only one of those points merits discussion.

         I. In concluding her rebuttal closing argument, the prosecutor declared:

Now, you have seen the evidence, you have heard the testimony, and you are going to have all the evidence and testimony to take back with you. The only thing left to do in this instance is to apply the law the judge gives you to the facts and the testimony and return a verdict that truth dictates and justice demands, and that is that this defendant is guilty as charged on both counts.

         Immediately, defense counsel asked the trial court if they could approach the bench, whereupon counsel moved for a mistrial. Counsel argued that the emphasized portion of the prosecutor's statement improperly apprised the jury of the State's opinion as to guilt, to which the jury would accord an inordinate and prejudicial amount of weight in deliberating the question of Appellant's guilt or innocence. The trial court denied the motion, explaining that, when viewed in context, the statement was relevant to what the State's evidence showed, and, to the extent "the word 'evidence' wasn't mentioned in that sentence," the court announced the statement was not so pervasive or repetitive "as to be a basis or even close to a mistrial." We agree.


         We review the denial of a motion for mistrial for an abuse of discretion. Jenkins v. State, 96 So.3d 1110, 1113 (Fla. 1st DCA 2012). In that context, the bar has been set high to obtain a mistrial based on improper prosecutorial comments: "A prosecutor's comments, to justify a mistrial, 'must either deprive the defendant of a fair and impartial 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.'" Id. (quoting Spencer v. State, 645 So.2d 377, 383 (Fla. 1994)).

         We acknowledge that "[a] criminal trial is a neutral arena wherein both sides place evidence for the jury's consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence[.]" Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999) (citing United State v. Garza, 608 F.2d 659, 662-63 (5th Cir. 1979)). Consequently, a prosecutor cannot, in closing arguments, imply that the State would not be prosecuting anyone who was not guilty or call the defendant a liar. Id. at 5 (citing Hall v. United States, 419 F.2d 582 (5th Cir. 1969)). Furthermore:

[A] bedrock principle of our criminal justice system is that every effort must be made in any trial . . . to ensure that the jurors base their decision, not on sympathy for the victim or prejudice against the defendant, but solely on the facts elicited during trial and the law instructed by the trial court. The State's burden is to prove the elements of the crime beyond a reasonable doubt. When the State instead uses closing argument to appeal to the jury's sense of outrage at what happened to the victim and asks the jurors to return a verdict that brings "justice" to the victim, the State perverts the purpose of closing argument and engages in the very type of argument that has been repeatedly condemned as antithetical to the foundation of our criminal justice system that guarantees a fair trial to every accused.

Cardona v. State, 185 So.3d 514, 519-20 (Fla. 2016). Thus, a prosecutor is prohibited from making repeated references asking for "justice" for the victim, "regardless of whether the case involves [] heart-wrenching circumstances." Id. at 520. The supreme court in Cardona stressed that such remarks are "the most egregious category of clearly improper closing argument" because they "improperly inflame[] ...

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