WESTLEY DESHUND BRAND
v.
STATE OF FLORIDA
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court affirmed a convicted felon's conviction for possessing a firearm, despite an improper argument by the prosecutor during closing arguments. The court found the prosecutor's comment, which incorrectly suggested a deputy had not been convicted of a felony, to be harmless error.
The court held that while the prosecutor's statement was improper and the objection should have been sustained, the error was harmless. The court found no reasonable possibility that this brief, isolated comment affected the jury's verdict.
[1] A prosecutor's argument that a witness has not been convicted of a felony is improper when there is no evidence in the record to support that assertion.
[2] An improper argument by a prosecutor during closing arguments may be deemed harmless error if there is no reasonable possibility that the comment affected the jury's verd…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Nonetheless, we affirm Brand’s conviction. We have reviewed the entire record and are satisfied there is no reasonable possibility that this brief, isolated comment affected the verdict in the trial.”
Establishes the court's decision to affirm the conviction despite the prosecutorial error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWestley Brand was convicted of possession of a firearm by a convicted felon. During closing arguments, the prosecutor stated that a deputy had not bee…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Witness Credibility Assessment cases and more on FLexlaw
COHEN, J.
Westley Brand appeals following his conviction for possession of a firearm by a convicted felon.1 The sole issue on appeal involves an allegedly improper argument by the prosecutor during closing argument.
At trial, the State called sheriff’s deputy Captain Barrett. He testified that he came into contact with Brand as part of an investigation. As he approached Brand, Brand told him that he had a firearm in his possession. Deputy Worth testified and corroborated the captain’s testimony that Brand voluntarily stated he had a gun in his back pocket. Deputy Worth handcuffed Brand and retrieved a black handgun. Deputy Worth was wearing a body camera that showed the events, although the sound was not turned on before Brand said he had a gun. Brand testified and denied both possessing a firearm and making any statements admitting to being in possession of a firearm. Brand acknowledged having been convicted of three prior felonies. The trial court read the jury instructions prior to the lawyers’ closing arguments. During the rebuttal portion of his closing argument, the prosecutor argued: I submit to you, that the defendant’s testimony should not be relied upon. Why is that? There’s[sic] seven factors right here. Did the witness seem to have an opportunity to see and know the things about which the witness testified? Did the witness seem to have an accurate memory . . . . He was being very evasive . . . . Has the witness been convicted of a felony? Deputy Worth has not been convicted of a felony.
Brand objected on the grounds that the State was arguing “facts not in evidence.” The prosecutor immediately responded to the judge at the bench, “That’s fine, Your Honor. State’s not going to argue that.” The judge overruled the objection. The matter was never raised again. The defense objection is well taken. There was no evidence Deputy Worth had ever been convicted of a felony, and the trial court should have sustained the objection. Nonetheless, we affirm Brand’s conviction. We have reviewed the entire record and are satisfied there is no reasonable possibility that this brief, isolated comment affected the verdict in the trial. See DiGuilio v. State, 491 So. 2d 1129 (Fla. 1986). No doubt, the jury was required to assess the credibility of the witnesses. The jury was properly instructed on how to assess credibility. Further, the judge told the jury that what the lawyers say is not evidence, and that they are to rely on their own recollection of the evidence, rather than deferring to the lawyers’ arguments. The prosecutor’s ill-advised comment was isolated and brief. We are satisfied beyond a reasonable doubt that the jury’s verdict was not influenced when the prosecutor suggested during closing argument that a police officer was not a convicted felon. We find the error to be harmless and affirm appellant’s conviction.
AFFIRMED.
SASSO, C.J., and NARDELLA, J., concur. Matthew J. Metz, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.