DUK TRAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal affirmed defendant's conviction for grand theft but reversed his convictions for attempted first degree murder and shooting into an occupied building due to prosecutorial misconduct. The state improperly suggested that witnesses were afraid to testify due to defendant's intimidation, implying the defense had tampered with witnesses, which was reversible error.
The court held that the prosecutor's tactics constituted impermissible and highly prejudicial misconduct. The court reversed the convictions for attempted first degree murder and shooting into an occupied building because the error could not be deemed harmless, as it may have affected the jury's assessment of defendant's own testimony. The grand theft conviction was affirmed based on defendant's own testimonial admission.
[1] A prosecutor's implication that defense counsel tampered with witnesses or suborned perjury, without any basis, is impermissible and prejudicial.
[2] A prosecutor's repeated theme that witnesses were afraid to testify against the defendant, without evidentiary support, constitutes reversible error.
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Join FLexlaw to unlock all legal intelligence“The implication by the prosecutor in this case was that the defense 'got to' the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial.”
Establishes the standard for evaluating prosecutorial misconduct when comments impugn the defense without factual basis
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Join FLexlaw to unlock all legal intelligenceDefendant Duk Tran was charged with attempted first degree murder, shooting into an occupied building, and grand theft. The shooting incident occurred…
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FARMER, Judge.
Although we affirm defendant’s conviction for grand theft (Count III) on account of his own testimonial admission, we reverse the convictions for attempted first degree murder and shooting into an occupied building (Counts I and II). The state here successfully carried out the very same tactics we disapproved in Henry v. State, 651 So. 2d 1267 (Fla. 4th DCA 1995).
In this instance, the state began playing the theme in the opening statement that eyewitnesses would not testify out of fear of reprisal by defendant. This theme continued when the prosecution elicited testimony, from the only witness who identified defendant, that another witness who did not do so had said that he was “scared to come to court.” A police officer testified that although there were several people remaining at the scene of the shooting, a crowded bar, he felt the witnesses were being intentionally uncooperative. Another officer testified that the witnesses were “brusque” and insisted they had not seen anything but that he found this hard to believe. In closing argument the prosecutor argued that “nobody wanted to get involved,” that the state could not make people get involved, and that “the bottom line is that nobody saw anything.” The trial court denied a motion for mistrial.
As Judge Warner wrote in Henry: “The implication by the prosecutor in this ease was that the defense ‘got to’ the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial. See Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984), rev. denied, 456 So. 2d 1182 (Fla.1984). We strongly disapprove of the prosecutor’s making comments which impugn the defense without any basis.”
651 So. 2d 1267. Moreover, as in Henry, we cannot deem the error harmless because “it may have affected the weight that the jury ascribed to the testimony of’ the defendant, who took the stand and testified on his own behalf.
AFFIRMED AS TO COUNT III; REVERSED AND REMANDED FOR A NEW TRIAL AS TO COUNTS I AND II.
WARNER and KLEIN, JJ., concur.
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Penalver v. State, 926 So. 2d 1118 (Fla. 2006)…ting him every day.... Generally, comments by the State implying that the defense tampered with a witness without evidentiary support constitute reversible error. See, e.g., Cooper v. State, 712 So. 2d 1216, 1217 (Fla. 3rd DCA 1998); Tran v. State, 655 So. 2d 141, 142 (Fla. 4th DCA 1995); Jones v. State, 449 So. 2d 313, 314-315 (Fla. 5th DCA 1984). Penalver cites the Fourth District Court of Appeal’s decision in Tindal v. State, 803 So. 2d 806 (Fla. 4th DCA 2001), as support for his argument. In Tindal, the…
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Johnson v. State, 747 So. 2d 436 (Fla. 4th DCA 1999)…request for mistrial, which the defendant asserts is reversible error. It is error for a prosecutor to suggest that a witness did not appear due to fear of the defendant where there is no evidentiary support for the proposition. See Tran v. State, 655 So. 2d 141, 142 (Fla. 4th DCA 1995); Jones v. State, 449 So. 2d 313, 314-15 (Fla. 5th DCA 1984). Thus, the trial court correctly sustained the objection and directed the jury to disregard the comment. However, a ruling on a motion for a mistrial is within the…
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Johnson v. State, 917 So. 2d 226 (Fla. 3d DCA 2005)…. “A suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, [*234] without foundation in the record, is completely improper.” Cooper v. State, 712 So. 2d 1216, 1217 (Fla. 3d DCA 1998); see also Tran v. State, 655 So. 2d 141 (Fla. 4th DCA 1995); Henry v. State, 651 So. 2d 1267, 1268-69 (Fla. 4th DCA 1995). Although wide latitude is permitted in closing argument, see Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982), this latitude does not extend to allow improper argument…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984)
- State v. Anderson Columbia Co., Inc., 651 So. 2d 1267 (Fla. 1st DCA 1995)
- Oral Henry v. State, 651 So. 2d 1267 (Fla. 4th DCA 1995)