CAPTAIN BUCKNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Captain Buckner was convicted of cocaine sale within 1000 feet of a school. He appealed, arguing the prosecutor improperly bolstered the credibility of the key witness (Sergeant Green) through comments during opening statement and closing argument. The court affirmed the conviction, finding any prosecutorial error harmless beyond a reasonable doubt given the strong evidence, including the officer's undercover testimony and video recording of the transaction.
The court held that while the prosecutor's comments constituted improper bolstering, they did not require a new trial. The comments did not deprive the defendant of a fair trial, materially contribute to conviction, or prove fundamentally tainted because the state presented strong evidence including the officer's direct testimony of the undercover purchase and a videotape recording of the entire transaction. Any error was harmless beyond a reasonable doubt.
[1] A prosecutor's comments during opening statement or closing argument that vouch for the credibility of a witness constitute improper bolstering.
[2] Improper prosecutorial comments require a new trial only if they deprive the defendant of a fair trial, materially contribute to the conviction, are so harmful as to requ…
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Join FLexlaw to unlock all legal intelligence“We agree with the Appellant that these comments constitute improper bolstering.”
Court's recognition that the prosecutor's vouching for witness credibility was improper under established precedent, despite ultimately finding the error harmless.
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Join FLexlaw to unlock all legal intelligenceBuckner was tried and convicted by jury for sale of cocaine within 1000 feet of a school. Sergeant Green, working undercover, actually purchased the c…
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PER CURIAM.
The Appellant was tried and convicted by a jury for the crime of sale of cocaine within 1000 feet of a school. He argues that his conviction must be overturned because of the prosecutor’s improper comments during the trial. Specifically, during opening statement the prosecutor told the jury that, “[yjou’ll hear from Detective Green. I am sure that you will find him very credible.” During summation the prosecutor made the following argument to the jury:
And it’s also offensive to suggest that because Sergeant Green is a policeman that somehow his sole role is to come here and convict people and come here to testify in order to get a conviction. He puts his reputation on the line every time he makes an arrest, every time he does what he does, and he’s under an obligation, he’s under oath to sit here and testify truthfully, and that’s what he did.
Later in the closing argument, the prosecutor said:
[The police officer] is putting his credibility on the line. He’s doing his role trying to clean up South Miami of drugs, and that’s what they had in the undercover operation.
The defendant objected and moved for a mistrial after two of these comments. It appears that the trial court did not rule on the defendant’s objection to the comment made during the opening statement, but did deny the motion for mistrial. The defendant requested a curative instruction and the judge complied, saying to the jury:
Ladies and gentlemen, the last comment by counsel with respect to the credibility of the officer, disregard that. The issue of credibility is one that you alone will decide when you go back to decide this case.
As to the defendant’s objection to the prosecutor’s first comment during closing argument, again the court did not rule on the objection but did deny the motion for mistrial. No request was made for a curative instruction and none was given. No objection was made to the third and final comment.
We agree with the Appellant that these comments constitute improper bolstering. Livingston v. State, 682 So. 2d 591 (Fla. 2d DCA 1996); Williams v. State, 673 So. 2d 974 (Fla. 1st DCA 1996); Cisneros v. State, 678 So. 2d 888 (Fla. 4th DCA 1996); Davis v. State, 663 So. 2d 1379 (Fla. 4th DCA 1995); Clark v. State, 632 So. 2d 88 (Fla. 4th DCA 1994), overruled on other grounds by T.B. v. State, 669 So. 2d 1085 (Fla. 4th DCA 1996); Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993); Garrette v. State, 501 So. 2d 1376 (Fla. 4th DCA 1987); Blackburn v. State, 447 So. 2d 424 (Fla. 5th DCA 1984); Richmond v. State, 387 So. 2d 493 (Fla. 5th DCA 1980); Francis v. State, 384 So. 2d 967 (Fla. 3d DCA 1980). In Lopez v. State, 555 So. 2d 1298 (Fla. 3d DCA 1990), we held that in order for a prosecutor’s comment to merit a new trial, the comments must be of such a nature so as to: (1) deprive the appellant of a fair and impartial trial; (2) materially contribute to his conviction; (3) be so harmful or fundamentally tainted as to require a new trial; or (4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise. We do not believe the improper comments in this case, taken in their totality, require the granting of a new trial.
In its case in chief, the state presented the testimony of Sergeant Green, who, acting in an undercover capacity, actually purchased the cocaine in question from the defendant. Additionally, the state introduced a videotape recording of the entire criminal transaction. We are satisfied that any error in this case was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Affirmed.
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Freeman v. State, 717 So. 2d 105 (Fla. 5th DCA 1998)…ergeant] because he is a truthful man,” “If you think this officer is going to compromise his ethics,” and “this officer would not come in this courtroom and lie to you” were patently improper and deprived defendant of fair trial); Buckner v. State, 689 So. 2d 1202 (Fla. 3d DCA 1997) (finding prosecutor’s comments that jury would find police officer “very credible” and that he told the truth on the stand were improper but a new trial was not warranted when comments were examined in totality); Davis v. State, 6…
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Rodriguez v. State, 906 So. 2d 1082 (Fla. 3d DCA 2004)…e. The appellant asserts that this argument improperly bolstered this witness’s testimony on behalf of the State. See Lewis v. State, 780 So. 2d 125, 130 (Fla. 3d DCA 2001); Fryer v. State, 693 So. 2d 1046, 1047 (Fla. 3d DCA 1997); Buckner v. State, 689 So. 2d 1202, 1203 (Fla. 3d DCA 1997); Cisneros v. State, 678 So. 2d 888, 890 (Fla. 4th DCA 1996). The record, however, reflects that this argument was made during rebuttal by the [*1091] State in response to an argument made by the defense regarding Detective…
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Lewis v. State, 780 So. 2d 125 (Fla. 3d DCA 2001)…opardize -their careers, their families, place their livelihood on the line? For what? This type of argument has been repeatedly held to constitute improper bolstering. See Fryer v. State, 693 So. 2d 1046, 1047 (Fla. 3d DCA 1997); Buckner v. State, 689 So. 2d 1202 (Fla. 3d DCA 1997); Cisneros v. State, 678 So. 2d 888 (Fla. 4th DCA 1996); Davis v. State, 663 So. 2d 1379 (Fla. 4th DCA 1995); Garrette v. State, 501 So. 2d 1376 (Fla. 1st DCA 1987); Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993); Blackburn v…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Malla Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993)
- Tucker v. State, 555 So. 2d 1298 (Fla. 3d DCA 1990)
- Garrette v. State, 501 So. 2d 1376 (Fla. 1st DCA 1987)
- Gentile-Youd v. In re Guardianship OF Harriet Rudnick, 632 So. 2d 88 (Fla. 3d DCA 1994)
- Cisneros v. State, 678 So. 2d 888 (Fla. 4th DCA 1996)
- T.B. v. State, 669 So. 2d 1085 (Fla. 4th DCA 1996)
- Davis v. State, 663 So. 2d 1379 (Fla. 4th DCA 1995)
- Livingston v. State, 682 So. 2d 591 (Fla. 2d DCA 1996)
- Blackburn v. State, 447 So. 2d 424 (Fla. 5th DCA 1984)