County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – State improperly depicted the defendant as a wife beater, even though there was no evidence, or even an allegation, that the defendant ever struck his wife. Judgment and sentence reversed. Russell v. State, No. CRC 03-8 APANO, (Fla. 6th Cir.App.Ct. April 18, 2005).











v.                                                                                                                                           Appeal No. CRC 04-00031 APANO








Opinion filed _________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Dorothy Vaccaro


Melissa Miguel, Esq.

Assistant Public Defender


Thomas Cope, Esq.

Assistant State Attorney




            THIS MATTER is before the Court on the defendant, Alvin Russell’s, appeal from a judgment and sentence entered against him following a determination by a jury that he was guilty of assault and resisting arrest without violence. After reviewing the briefs and record, this Court reverses the judgment and sentence.

            The defendant was charged with assaulting his wife and resisting arrest without violence. His wife had called the police to the couple’s house. When the police arrived the wife told them the defendant was out of control and that she needed someone to speak to him. While being escorted out of the apartment, the defendant became angry at his wife, raised his right hand in a fist and lunged at her. The officers testified that she ducked, defensively raised her hand, cowered, and that had she not ducked, she would have been struck by the defendant. A struggle ensued when the police tried to handcuff the defendant. He attempted to pull away from the officers, pulled one hand free, braced, tensed, and attempted to resist being handcuffed. He was charged with assault and resisting arrest without violence. At trial the wife testified on her defendant husband’s behalf. The three officers testified on behalf of the State.

            The defendant contends that he was denied a fair trial because of the improper comments, both individually and cumulatively, of the State during its closing argument. First, the defendant complains that the State improperly argued facts that were not in evidence. Specifically, the State argued that officers: “put their lives on the line every day to protect us, every day to keep our society safe, and every day to keep battered wives and abused people from being downtrodden and abused. They were there as peacekeepers.” This brought an objection from the defense, claiming that those comments had essentially depicted the defendant as a wife beater, even though there was no evidence, or even an allegation, that the defendant had ever struck his wife.1 The trial court sustained the objection, but denied the defense’s motion for a mistrial, opting instead to give the jury a curative instruction to disregard the comment and explaining that the defendant was not on trial for battery.

At trial the State argued that it did not actually claim the defendant had battered his wife, but was making a general comment about the duties the police have. In the context of this case, however, the State’s comments were clearly tantamount to stating that the defendant had battered his wife in the past. The error was compounded when, right after the curative instruction, the State said: “it doesn’t matter what happened before this, what has happened --- what I may have alluded to happened, or any other thing. What is before you is what you heard testimony on today.” Surprisingly, the defense did not object to that comment, but this Court believes it is important when considering the context of the State’s comments that were the subject of the defense’s objection. The clear inference drawn by a reasonable person hearing the comments would be that the defendant had battered his wife in the past, but the jury was not to consider it because it was not an issue to be decided in the trial. That insinuation, clearly unsupported by the record, is improper. “Unsubstantiated statements that concern references to other crimes committed by a defendant are ‘particularly condemned.’” Ford v. State, 702 So.2d 279 (Fla. 4th DCA 1997). “The implication of a defendant in other crimes is considered presumptively prejudicial.” Id.  Moreover, the State cannot suggest to the jury that there is other evidence harmful to the accused that the jury did not hear. See Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993); Wilson v. State, 798 So.2d 836 (Fla. 3rd DCA 2001).

The trial judge did give a curative instruction, however the State’s subsequent attempt to “clarify” the remark only magnified the error. The error was not harmless. Given the nature of the trial, this Court cannot say beyond a reasonable doubt that the improper comments did not affect the verdict. The defense’s motion for mistrial should have been granted. Therefore, the judgment and sentence are reversed.

            As his second argument, the defendant argues that, although they were not the subject of an objection, the State made several improper comments during its closing that eventually became fundamental error because they cumulatively deprived him of a fair trial. Generally, the alleged errors were improper vouching for the credibility of the police officers. The State made several statements to the jury that the police should be believed because they would not lie. Contrary to the State’s arguments in its answer brief, most of the comments were made before the defense’s closing. A review of the transcript reveals that the State began vouching for the credibility of the officers shortly into its first closing argument. Therefore, they could not be considered as merely a response to the defense questioning the credibility of the police officers during its closing argument. The State’s line of argument during its closing argument was improper. See Williams v. State, 747 So.2d 474 (Fla. 5th DCA 1999); Cisneros v. State, 678 So.2d 888 (Fla. 4th DCA 1996).

The statements, however, were not objected to by the defense. The defendant is now faced with having to base his argument on the claim that the comments rose to the level of fundamental error. Given this Court’s ruling on the defendant’s first appellate issue, however, the issue of whether or not the comments rise to the level of fundamental error need not be reached.

            IT IS THEREFORE ORDERED that the judgment and sentence are reversed, and

this matter is remanded for a new trial.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of April, 2005.





                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge





                                                                                                Timothy R. Peters

                                                                                                Circuit Judge





                                                                                                John A. Schaefer

                                                                                                Circuit Judge


cc:   State Attorney


        Public Defender


        Judge Vaccaro

1 The defendant also claimed the comments were improper because they violated the “golden rule,” but this Court finds that argument unpersuasive.