County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – Fair reply comments – Standard of review.  In closing argument before a jury, defense counsel and prosecution expressions of personal opinion as to the guilt or innocence of the defendant, the credibility of a witness, or the facts in issue, are improper.  Arguments not based on facts in evidence or on reasonable inferences drawn from the evidence are improper.  The prosecution should not make any argument that suggests that police officers should be believed simply because they are law enforcement officers or that they would not jeopardize their careers by lying in the case.  If there are improper closing arguments by one counsel, the opposing counsel is permitted a fair reply to those arguments.  Under U.S. v. Young, 470 U.S. 1, 105 S.Ct. 1038 (1985), responsive remarks that were “invited,” and did no more than respond substantially in order to “right the scale,” did not warrant reversing a conviction.  A trial judge's rulings on objections made in closing argument are reviewed under the abuse of discretion standard.  Trial court’s judgment and sentence affirmed.  Mark Wayne Nettles v.  State, No. CRC 08-00070APANO (Fla. 6th Cir. App. Ct. May 1, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

MARK WAYNE NETTLES

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00070 APANO

                                                                        UCN522008MM006412XXXXNO

 

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a Judgment and Sentence

Entered by the Pinellas County Court

County Judge Susan Bedinghaus

 

Thomas Matthew McLaughlin, Esquire

Attorney for Appellant

 

James S. Jenkins, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Mark Wayne Nettles’, appeal from a conviction, after a jury trial, of Possession of Marijuana, a first degree misdemeanor, in violation of § 893.13 (6) )B) Fla. Stat. (2008).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

On March 3, 2008, Appellant was charged by notice to appear with Possession of Marijuana.   On September 16, 2008, a jury trial was conducted. 

A. Jury Selection.  During jury selection, the following exchange took place between Appellant’s trial counsel and one female African-American prospective juror:

ATTORNEY:  Okay.  So, does anybody feel that just because an officer’s up on the stand that what they say is the God-honest truth, that’s it?

 

PROSPECTIVE JURORS:  [In toto] No.

 

ATTORNEY:  No?  Okay.  Now, you’re shaking your head, Ms. (Prospective Juror). 

 

PROSPECTIVE JUROR:  Uh-huh.

 

ATTORNEY:  Why?

 

PROSPECTIVE JUROR:  I mean, they’re human and I see officers lie for good reasons and bad reasons, to save somebody or to save themselves from getting in trouble.  It’s human nature to try and protect whatever they need to protect whatever reason that they’re lying for; that’s why they’re lying.  But I’m not saying all cops just lie.  But if they do they do; if they don’t they don’t.  It’s human nature.  That’s it; human nature.  It’s their conscience they have to deal with.  They’re the ones that are lying.

 

During jury selection, the State exercised a preemptory challenge on that juror and the Defense asked for race-neutral reason.  The State responded by referring to what the prospective juror had said regarding “cops can be liars”.  After argument, the court allowed the strike over the Appellant’s objection.

            B. Trial Testimony.  At trial, Officer Haemmelmann of the St. Petersburg Police Department testified that he conducted a traffic stop on the Appellant because he knew the Appellant was driving with a suspended driver’s license.  In cross-examination Appellant’s trial counsel questioned the officer extensively about the completeness of his police report.  This cross-examination clarified that the report did not mention that Appellant’s girlfriend was in the car; the report did not mention that the car smelled faintly of marijuana; that the computer incorrectly inserted Appellant’s name as the owner of the car in the police report.  The police report was not entered into evidence.  Officer Haemmelmann placed the Appellant in custody for the traffic offense and searched the Appellant’s car incident to an arrest.  During the search, Officer Haemmelmann found marijuana in the car’s center console.  Officer Haemmelmann testified that after reading the Appellant his Miranda rights, the Appellant admitted that the marijuana was his.  Additionally, Shannon Kincannon, a forensic chemist, testified that she tested the item Officer Haemmelmann found and confirmed it was marijuana.  Finally, Willard Nettles, the defendant’s father, testified that his son mainly drives the car and that he did not know what marijuana looked like or keep it in the car. 

            C. Closing Arguments.  In closing argument Appellant’s trial counsel argued in part:

So, why are we at trial?  We’re at trial because my client, the marijuana was not his.  That’s why we’re at trial, because the marijuana was not his. (emphasis added).

 

Because you had a chance to listen to Officer Haemmelmann, who’s here in the court; he’s here listening.  And even though it feels bad to say this, he’s lying; that’s it. You know why?  You know how you can tell that?  You can tell that based on everything that was left out of the report and how important it is.  This is a man who deals with paperwork every single day of his life.  Every single day.  He’s going to leave out key indicators -- key indicators that would show innocence for my client. (emphasis added).

 

I think the officer said that I’m going to pick up my girlfriend, but we found out the girlfriend was actually in the car, which was not mentioned in the police report.  That’s important. 

 

In direct examination, Officer Haemmelmann actually testified that Appellant had said, “(h)e advised that he knew he should not have been driving, but he was out picking up his girlfriend.”

            Appellant’s closing argument continued:

So, let’s talk about that.  Number one, no passenger.  If you just look at that police report, there is no passenger in the case.  No passenger at all existed.  Okay?  We didn’t hear about a passenger until I got a chance to talk to the officer today, or I believe maybe the State brought it out.  Why is that important?  Because a passenger, that passenger, it could have been their marijuana, correct?  It could have been.  But when you don’t have a passenger listed in the police report, isn’t it more likely the scene that, hey, he admitted to it; he’s the only person in the car; he’s the only person who had control of the car; it’s got to be his.  That statement’s definitely true.

 

In direct examination, Officer Haemmelmann testified that the girlfriend was in the car at the time.   

Appellant’s closing argument continued in part:

Doesn’t that make more sense to do that?  Just based on his word alone, Mark’s in here with a possession of marijuana charge, something that he did not do, just based on his word.  To do correct police work, wouldn’t you want to have paperwork?  Wouldn’t you want to have that admission?  (emphasis added).

           

Now, look.  This is the biggest part, right?  Mark says, “It’s my marijuana.”  But how do we know that’s not the truth?  How do we know that that didn’t happen like that?  What seems more reasonable?  Saw Mark; stops him driving.  Mark knows he’s not supposed to be driving.  He said, hey, I’m not supposed to be driving here.  Stops him, arrests him, puts him in the car.  So, at this point he’s under arrest, in the police cruiser.  Then the officer goes and searches the car.  Searches the car, finds marijuana.  Goes back to Mark, Is this your marijuana; if you say this is your marijuana I’ll let you go.  Doesn’t that sound what’s more reasonable what happened?  You know why?  Because you know what?  You mean to tell me somebody who does two offenses, he didn’t go to jail that day?  Does that make sense?  No.  Mark never said it was my marijuana. (emphasis added).

 

There was no evidence presented at trial that Officer Haemmelmann ever saidif you say this is your marijuana I’ll let you go.”  Appellant’s trial counsel asked the officer, “(o)kay.  Now, isn’t it true that you told him, admit to it and I won’t arrest you?  Isn’t that true; isn’t that what you said?”  The officer answered “no”.  In response, the prosecutor later asked, “(w)ould you ever, ever tell someone when investigating that if they admitted to something they would not be arrested?”  The officer answered “no”.

            Appellant’s closing argument continued:

Not guilty.  He’s not guilty.  The State did not prove their case beyond a reasonable doubt.  And yes, I hate to say it, but Officer Haemmelmann is not telling the truth.  There’s reasonable doubt all over this case, and all I had to do was show you one. (emphasis added).

 

In rebuttal closing argument the prosecutor argued in part:

 

Now, if they are lying, that means that they are risking their careers at this point, right? (emphasis added).

 

They called law enforcement officers liars, right?  So, what we have to assume is that they would lie to bring the defendant here, to pull him over, and to plant evidence, to risk their careers. (emphasis added).

 

Both officers were pretty clear about everything they testified to.  Was the witness honest and straightforward in answering the attorneys’ questions?  Absolutely.  Both officers were completely honest in answering all the defense counsel’s questions. (emphasis added).

 

At the conclusion of the trial, the Appellant was found guilty by the jury of the charge of Possession of Marijuana.

Issues

            The Appellant raises two issues on appeal.  First, the trial court erred in failing to reject the Appellee’s preemptory challenge of the prospective juror.   Second, the trial court erred when it denied Appellant’s motions for mistrial and overruled Appellant’s objections based on improper argument by the prosecution in closing argument.  Only the second issue will be discussed in this opinion.

Standard of Review

A trial judge's rulings on objections made in closing argument are reviewed under the abuse of discretion standard.  Moore v. State, 701 So.2d 545, 551 (Fla.1997).

Closing Arguments

In the present case, the attorneys closing arguments were, in part, patently improper and contrary to the rules of professional conduct.

A.  Rules Regulating The Florida Bar.  Attorneys presenting closing argument in Florida courts, whether in criminal or civil trials, are governed by rule 4-3.4 (e) of the Rules Regulating The Florida Bar. Rule 4-3.4 (e) states:

A lawyer shall not ... in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused.

 

B. Closing Arguments in Criminal Cases.  In their closing arguments attorneys must maintain the demeanor required in a criminal trial.  Johns v. State, 832 So.2d 959, 963 (Fla. 2nd DCA 2002).  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 non-record evidence. Ruiz v. State, 743 So.2d 1, 4 (Fla.1999); Johns, 832 So.2d at 963.

The role of the attorney in closing argument is “to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to ‘testify’ as an ‘expert witness.’ The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence.” (citation omitted). To the extent an attorney's closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty.

 

Ruiz, 743 So.2d at 4.  Counsel shall refrain from expressing personal opinion as to the guilt or innocence of the defendant, the credibility of a witness or the facts in issue.  Bauta v. State, 698 So.2d 860 (Fla. 3rd DCA 1977); State v. Ramos, 579 So.2d 360 (4th DCA 1991); Blackburn v. State, 447 So2d 424 (Fla. 5th DCA 1984). 

It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed, “[t]he interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.” (citation omitted)(Cite as: 470 U.S. 1, *8, 105 S.Ct. 1038, **1043)

 . Defense counsel, like the prosecutor, must refrain from interjecting personal beliefs into the presentation (Cite as: 470 U.S. 1, *9, 105 S.Ct. 1038, **1043)

of his case. (citations omitted).

U.S. v. Young,  470 U.S. 1, 9, 105 S.Ct. 1038, 1043 (1985).  Counsel shall avoid making arguments that are not based on facts in evidence or reasonable inferences that can be drawn from that evidence.  Spencer v. State, 645 So.2d 377 (Fla. 1994).  The prosecution shall not make any argument that suggests that police officers should be believed simply because they are officers or that they would not jeopardize their careers by lying in the case.  Sinclair v. State, 717 So.2d 99 (4th DCA 1998).  The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Miller v. State, 926 So.2d 1243, 1253 (Fla.,2006); Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985).

C.  Arguing a Witness is a “Liar”.  In general saying a witness is a “liar” is an expression of personal opinion.  It is improper for counsel to make a statement of his or her personal opinion.  First v. State, 696 So.2d 1357, 1358 (Fla. 2nd DCA 1997).  Nevertheless it is not improper for either counsel to state during closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations are supported by the record. (emphasis added). Murphy v. Int'l Robotic Sys., Inc. 766 So.2d 1010, 1028 (Fla.2000); Craig v. State, 510 So2d 857, 865 (Fla. 1987); State v. Comesana, 904 So.2d 462, 464 (Fla. 3rd DCA 2005); Brown v. State, 678 So.2d 910, 912 (Fla. 4th DCA 1996).

It is “unquestionably improper” for a prosecutor to state that the defendant has lied. (citation omitted).   This is especially true in an instance where the defendant takes the stand in his own defense because the prosecutor's reference to the defendant as a liar encroaches on the jury's job by improperly weighing in with his or her own opinion of the credibility of the witnesses. (citation omitted). However, courts have held that where such commentary is supported by the evidence, there will be no reversal.  (citation omitted); See, e.g., Lugo v. State, 845 So.2d 74, 107-08 (Fla.2003) (holding that where the evidence substantially proved the defendant's deceitful actions, the prosecutor's remarks calling into question the defendant's veracity were nothing more than appropriate comments on the evidence). In Craig v. State, 510 So.2d 857, 865 (Fla.1987), this Court stated that when the prosecutor called the defendant a “liar” it was “somewhat intemperate.” However, this Court also stated that when it can be understood that the name “liar” is made in reference to that person's testimony, then the prosecutor is merely submitting to the jury a conclusion he has drawn from the evidence. Id. It is only when, viewed in the totality of the case, the prosecutor's comments drift far afield from the evidence adduced at trial that they may constitute fundamental error. Lugo, 845 So.2d at 101.

 

Zack v. State, 911 So.2d 1190, 1205 (Fla. 2005).  In Lugo, defendant claimed that the prosecutor persistently called him a “liar” or used variations on that term.

“Here, Lugo's argument has little merit, as the record reveals a plethora of evidence that he consistently engaged in deceitful practices. Those prevarications ranged from Lugo and Doorbal's concoction of the scheme involving phone lines in India to trick Frank Griga into believing he was dealing with legitimate businessmen, to Lugo's use of false names to further his illegitimate business dealings.”

 

Lugo, 845 So.2d at 107.  The Lugo court explained “when it is understood from the context of the argument that the charge of untruthfulness is made with reference to the evidence, the prosecutor is merely submitting to the jury a conclusion that (Cite as: 845 So.2d 74, *108)

he or she is arguing can be drawn from the evidence.” Lugo, 845 So.2d at 107-108.          

D. Fair reply” or “Invited response.  If there are improper arguments by one counsel, the opposing counsel is permitted a fair reply to those arguments.  The United States Supreme Court has addressed this rule known as “fair reply” or “invited response”.

The situation brought before the Court of Appeals was but one example of an all too common occurrence in criminal trials-the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action. Clearly two improper arguments-two apparent wrongs-do not make for a right result. Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial. To help resolve this problem, courts have invoked what is sometimes called the “invited response” or “invited reply” rule. (citation omitted).

 

In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were “invited,” and did no (Cite as: 470 U.S. 1, *13, 105 S.Ct. 1038, **1045)

more than respond substantially in order to “right the scale,” such comments would not warrant reversing a conviction.

 

(T)he issue is not the prosecutor's license to make otherwise improper arguments, but whether the prosecutor's “invited response,” taken in context, unfairly prejudiced the defendant.

 

U.S. v. Young,  470 U.S. 1, 11-13, 105 S.Ct. 1038, 1044-1046 (1985); See Vazquez v. State, 635 So.2d 1088 (Fla. 3d DCA 1994); McKenney v. State, 967 So.2d 951, 955 (Fla. 3rd DCA 2007). 

            If defense counsel attacks an officer’s credibility in closing argument, it is not improper bolstering for the State to argue that the officer had no motive to lie.  Rodriguez v. State, 906 So.2d 1082, 1090 -1091 (Fla 3rd DCA 2004).  A party may not invite error and then be heard to complain of that error on appeal.  Cox v. State, 819 So.2d 705, 715 (Fla.,2002);  See Pagan v. State, 830 So2d 792, 809 (Fla. 2002); State v. Compo, 651 So2d 127 (Fla. 2nd DCA 1995).  However, egregious comments that are not fairly responsive to opposing counsel’s original comments are not permitted.  McKenney, 967 So.2d at 955.

The Present Case

A. Appellant’s Argument.  Appellant argues the trial court erred when it denied Appellant’s motions for mistrials and objections based on improper statements by the prosecutor in his rebuttal closing argument.  The difficulty with this position is that the disputed remarks were a direct response to Appellant’s trial counsel’s  improper closing argument that the police officer was lying.  That assertion was an improper expression of personal opinion about the credibility of a witness not supported by the testimony and evidence presented at trial.  Appellant’s argument ignores the rule of “fair reply” or “invited response”.  The law does not necessarily permit the Appellant to make improper closing argument with impunity.  Appellant essentially asks that the Appellee be prohibited from responding to Appellant’s improper initial closing arguments.  

Counsel is permitted to express personal opinion as to the credibility of any witness only if such characterizations are reasonable inferences that can be drawn from the evidence.  Such characterizations must be supported by the record.  In the present case the record provides no such support.  The police officer was not impeached by inconsistent prior testimony, there was no testimony in direct contradiction of his testimony and there was no evidence or testimony to reasonably suggest deceitful actions on the part of the officer.  The principal argument used by counsel to support the assertion that the officer was “lying” was alleged omissions in the police report, a document that was not in evidence and was never seen by the jury.  There was no good faith basis in the trial record to permit counsel’s expression of her personal opinion about the officer’s credibility, “he’s lying; that’s it” or make the same point by proclaiming, “Mark never said it was my marijuana”. 

There were other improprieties in Appellant’s trial counsel’s closing argument.  She improperly stated a personal opinion about the innocence of the accused by saying “something that he did not do” and “he’s not guilty” and improperly expressed a personal opinion about a fact in issue by saying “the marijuana was not his”.  Finally counsel, alluded to a matter that she could not have reasonably believed would be supported by admissible evidence, that is, that Officer Haemmelmann ever said to Appellant “if you say this is your marijuana I’ll let you go.”  While all of this was being said, the prosecutor said nothing.  There was no contemporaneous objection or motion to strike.  For its part the trial court did not say or do anything.

B. Appellee’s Rebuttal Closing Argument.  The prosecution’s rebuttal closing arguments suggesting that police officers should be believed simply because they are officers, that they would not jeopardize their careers by lying in the case and that the officers were completely honest in answering all the defense counsel’s questions were obviously improper.  However neither the substantive impropriety of those arguments nor the prosecutor's license to make otherwise improper arguments are the issue.  The issue presented here is whether the prosecutor's “invited response,” taken in context, unfairly prejudiced the defendant.  Did the prosecutor do more than respond substantially in order to “right the scale”?  That is, were the prosecutor's arguments a “fair reply” to defense counsel's arguments and, if not, were they harmless beyond a reasonable doubt.  See Singletary v. State, 483 So.2d 8, 10 (Fla. 2d DCA 1985); Fryer v. State, 693 So2d 1046 (Fla. 3rd DCA 1997); Cisneros v. State, 678 So2d 888 (Fla. 4th DCA 1996); Davis v. State, 663 So.2d 1379 (Fla. 4th DCA 1995); State v. Ramos, 579 So.2d 360 (Fla. 4th DCA 1991).

This Court concludes that when read in full context, the Prosecutor’s rebuttal argument was a measured, reasonable and fair response to the Appellant’s improper arguments that elicited the comments.  Appellant was not unfairly prejudiced.

Conclusion

            This Court finds that the trial court did not err in failing to reject the Appellee’s preemptory challenge of the prospective juror and did not err in allowing the contested remarks in the prosecution’s rebuttal closing argument.  This court concludes that the judgment and sentence of the trial court were lawfully entered and should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of May, 2009.

 

 

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross. 

 

 

 

 

 

           

cc:        Honorable Susan Bedinghaus

            Office of the State Attorney

            Thomas Matthew McLaughlin, Esquire