NORBERTO DEL RIO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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 court affirmed the defendant's conviction and sentence, despite improper prosecutorial comments, because curative instructions and overwhelming evidence ensured a fair trial.
[1] Prosecutorial comments that appeal to the jury's "community conscience" or sense of "civic responsibility" are improper.
[2] Unwarranted attacks by a prosecutor on the integrity of defense counsel are improper and will not be condoned.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was involved in a shooting at a dwelling that resulted in one death and one injury. The victim's wife identified the defendant as the sh…
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 First Degree Murder With A Firearm cases and more on FLexlaw
PER CURIAM.
Norberto Del Rio (“the defendant”), appeals his conviction for first degree murder with a firearm, attempted second degree murder with a firearm as a lesser included offense, attempted first degree murder with a firearm, and burglary of an occupied dwelling with an assault and with a firearm. We affirm.
The defendant and two other men were observed at the front door of a dwelling occupied by Raul and Melinda Morejon. Raul and the defendant were struggling with a handgun, when the gun discharged and wounded Raul. Another person in the house, Armando Rojas, was killed by the gunfire. During the incident, Melinda called 911 and identified the defendant as the shooter. In the course of the phone call, Melinda asked her husband, “who did this” and his response was -“Norberto Del Rio,” the defendant. The defendant and the others were observed returning to a truck after the shooting. The police subsequently stopped the truck and ordered the occupants, one of whom was the defendant, out of the truck. A search of the defendant revealed a pair of handcuffs. A search of the truck revealed a .357 magnum rifle.
The defendant was found guilty and sentenced to life without eligibility for parole on the first degree murder count, and a concurrent nineteen years with a three year minimum mandatory on the remaining counts. While we affirm the defendant’s conviction and sentence in all respects, we write further solely to address our concerns with the improper comments made by the prosecutor, Michael Spivak, during closing argument.
Florida courts have repeatedly stated that counsel should avoid impassioned and prejudicial arguments which impermissibly appeal to the jury’s “community conscience” or sense of “civic responsibility”. See Superior Indus. Int’l, Inc. v. Faulk, 695 So. 2d 376 (Fla. 5th DCA), review denied, 700 So. 2d 685 (Fla.1997); Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA), review denied, 680 So. 2d 422 (Fla.1996). We are disturbed by the prosecutor’s apparent failure to heed these warnings.
It was improper for prosecutor Spi-vak to denigrate the city as a place where “death is cheap,” and to comment upon his own, as well as the juror’s, personal stake in the matter, by referring to how “[t]he law protects all of us or the law protects none of us” and how “[i]n the south, we saw it when it happened to blacks. In Germany we saw it when it happened to the Jews.”
It was further improper for prosecutor Spivak to launch unwarranted attacks against defense counsel by comment ing, “[s]ee this man here who claims to be a lawyer in good standing in Miami, Florida,” and “[t]hat is the same guy who is going to get np when I sit down and try to tell you what the evidence showed.” This court has stated on numerous occasions that it will not condone inflammatory and prejudicial remarks attacking the integrity of opposing counsel. See Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA)(opposing counsel referred to as “a master of trickery”), review denied, 662 So. 2d 932 (Fla.1995); Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990)(opposing counsel referred to as “lying” and “committing a fraud” upon the court and jury), review denied, 581 So. 2d 164 (Fla.1991); Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)(opposing counsel referred to as “cheap shot artist”).
We caution the prosecution regarding these inappropriate comments which stray dangerously close to requiring a new trial. However, we note that curative instructions were provided by the trial court, the jury was instructed both before and after closing arguments that the closing arguments were not to be viewed as evidence, and overwhelming evidence of the defendant’s guilt was presented at trial. See Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Thus although these comments were inappropriate, we conclude the record as a whole does not reflect that the defendant was deprived of a fair trial, and accordingly affirm the conviction and sentence below. See Cooper v. State, 712 So. 2d 1216 (Fla. 3d DCA 1998); Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998). We remind prosecutor Spivak of his ethical responsibilities and this Court’s strong disapproval of his conduct in this case.1
Affirmed.
. A copy of this opinion will be sent to the Florida Bar for further investigation as to whether the conduct in this case constitutes a violation of the Rules of Professional Conduct.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Brooks v. State, 762 So. 2d 879 (Fla. 2000)…aw will not support— is not going to support what those two criminal defense lawyers are going to argue to you. Transcript at 1546-47. While certainly not as egregious as comments discussed in other appellate decisions, see, e.g., Del Rio v. State, 732 So. 2d 1100, 1101 (Fla. 3d DCA 1999) (prosecutor stated, “See this man here who claims to be a lawyer in good standing in Miami, Florida,” and “[t]hat is the same guy who is going to get up when I sit down and try to tell you what the evidence showed.”); Redish…
-
Tindal v. State, 803 So. 2d 806 (Fla. 4th DCA 2001)…struction” removed any taint from the improper comment, but because the opinion does not detail what the improper comment was, we cannot evaluate whether the comment was a slight impropriety or amounted to major miscon [*811] duct. Del Rio v. State, 732 So. 2d 1100, 1102 (Fla. 3d DCA 1999), noted that prejudicial arguments which are inflammatory are inappropriate but when accompanied by curative instructions, may not necessarily deprive the defendant of a fair trial. Similarly, Williams v. State, 754 So. 2d 72…
-
Rubin Otero v. State, 754 So. 2d 765 (Fla. 3d DCA 2000)…ve it, and that’s exactly what your verdict should do. [*770] Florida courts have repeatedly condemned arguments by counsel which impermissibly appeal to the jury’s “community conscience” or its sense of “civic responsibility”. See Del Rio v. State, 732 So. 2d 1100, 1101 (Fla. 8d DCA 1999) (citations omitted). An argument which tells the jury that it sits as the conscience of the community has specifically been found to be inflammatory and impermissible. See Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985)…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Richardson v. Marsh, 481 U.S. 200 (U.S. 1987)
- Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)
- Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA 1996)
- Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA 1995)
- Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998)
- SUN Supermarkets, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990)
- Superior Indus. Int'l, Inc. v. Faulk, 695 So. 2d 376 (Fla. 5th DCA 1997)
- Cooper v. State, 712 So. 2d 1216 (Fla. 3d DCA 1998)