HOLLIE STANLEY

v.

THE STATE OF FLORIDA

PER CURIAM.

. Edward Hollie Stanley was charged with offering to commitiprostitution. The only direct evidence . against Ms. Stanley was the testimony of Detective Morgan No money was offered, no money changed hands. Stanley was convicted by ajury and now appeals. Stanley raises two meritorious issues. First, shecontends she was denied the op_portunity to commentin closing arguments onthe lackofvideo and/or audio evidenceto supportthetestimony of Detective Morgan. Second, Stanley contends the trial court impennissibly bolstered Detective Morgan's credibility by commenting that “it was ai I ways good to see [Detective Morgan].” Page I of 5

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I I ! -___..1.- \ The limits upon closing arguments lie within the discretion ofthe trial court. Frazier v. Stare, 970 So. 2d 929, 930 (Fla. 4thDCA 2008). This Courtwill not interfereunless an abuseofdiscretion is shown. Id. “[A]n abuse of discretion occurs when the judicial action is arbitrary, fanciful, or unreasonable orwherc no reasonable man would take the view the trial court adopted.” Johnson v. State _47 So. 3d 941, 943 (Fla. 3d DCA 2010) (citing Hqfi‘v. State, 569 So. 2d 1247, 1249 (Fla. 1990) and Canakaris v. Canaknris, 382 So. 2d I197, I203 (Fla. 1980)). Even ifthe trial court abused its discretion, the verdict will stand unless there is a reasonable possibility that the error affected the verdict. Mendoza v. State, 36 Fla. L. Weekly S427 (Fla. July 8, 2011). We recognize that courts may prohibit counsel from making arguments unsupported by the record. _UE-S‘. v. Martinez, 486 F. 3d 1239, 1247 (1 lathCir. 2007). “{A]rguments mustbeconfinedto the evidence in the record orwhich can reasonably be inferred from the evidence.” Williams v. State, 10 So. 3d218, 219 (Fla. 3dDCA 2009). -Inthe present instance, thetrial court allowed Stanley, on crossexamination) to ask “Okay, andyou‘didn't record this with an audio recorder, correct?" To which the Detective responded“Correct,no.” Asked ifhe had videotaped the encounter, the Officer responded “No.” Clearly, the trial court would have committed error ifit had prohibited closing argument referencesto the recordings on the grounds that their was a lack offoundational evidence. Inthe presence ofproper record evidence, “[t]hepurposeofclosing argumentis to help thejury understand the issues presented in a case by applying the evidence to the applicablelaw.” Goodrich v. State, 854 So. 2d 663, 664 (Fla. 3d DCA 2003). The trial court must afford defense counsel wide latitude to apply his or her theoryofthe case, based upon record evidence,to thejury. Jean v. State 27 So. 3d 784, 786 (Fla. 3d DCA 2010). This Court sees real risk, but little harm, when a counsel for the defense is denied the opportunity (as here), to comment on evidence adduced at trial. Certainly, both proper and improper arguments may be inferred from the same evidence. For example, case law suggests it would be impermissible for Stanley to imply that there was additional, Page 2 of4 [*3] E]. _,.__._.T._._.__. I l- l l I I i i l I l ~v- l undisclosed audiolvideo evidence ofinnocence. Wilson v. State, 798 So. 2d 836 (Fla. 3dDCA 2001). Likewise, case law suggests Stanleycouldnotpermissibly argue thatthe lack ofaudio/video evidence, in and ofitself, constituted legally inadequate evidence to convict; Despite the aforementioned, we see no absoluteprohibition against Stanley discussing thelack of audio/video evidence. Even if she could not do so to establish innocence, per sc, it would be appropriate to highlight the fallibility-of human recollection‘. Highlighting the lack ofaudio-video evidence doesnot demonstrate innocence, but identifies the limitationsofrecollectiontestimony. Such argument, in no way, requires a nefarious purpose for the lack ofaudio-video evidence. To the extent the lack of corroborating evidence highlights the fallibility of introduced testimony, it createsno direct inferenceofinnocence. Thus, while“the purposeofclosing argument is disservedwhencomment upon irrelevant matters is permitted," Halliburlon v. State, 561 So. 2d 2.48, Z49 (Fla. 1990), the reliability ofwitness recollections is a relevant matter which may be attacked by contrasting the same with audio-video recordings. = ; Alter reviewing the case law, it is important to "note. the singular nature of the evidence presented. Thecritical testimony came from a singleindividual paraphrasingafew short statements of the Defendant. The trial court's limitation on Stnnley’sability to.draw attention to the fallibility of recollection(the single mostcritical testimony) prevented herfiom commentinguponrelevant, matters already inevidence. Such limitation was unreasonable constitutes an abuse ofdiscretion. Canakaris, 382 So. 2d at I203; Johnson, 47 So. 3d at 943. _ As a secondary matter, weconcludethetrial courtimperrnissibly bolsteredthe testimonyofthe prosecution's sole witness to Defendants statements. We review the trial court's comments for fundamental errorbecause no objection was madeto suchcomments. Worthington v. State, 183 So. 2d 728 (Fla. 3d DCA 1966). Under this strict standard, we fmd there exists a “reasonable possibilitythat the statement ofthe trialjudge deprived the defendant ofafair trial.” Blake v. State, 336 So. 2d 454, Page3of4 _ - ‘I [*4] l. i i l l I I5 7!

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r ii =l ,- i t i l l '1 | I I 455 (Fla. 3d non 1916). . When the trial court announced it was “always good to see” Detective Morgan, several inferences naturally followed. First, the trial court's use ofthe word "always" implies lengthy and repeated experiences with Detective’Morgan. These lengtlry and repeated experiences are “always good”. Thenatural inference is that thetrial court, from personal experience, hascomplete respectand appreciation for Detective.Morgon. His appearances in court are ‘unfailingly good.‘ Such a conunent amounts “to thejudge vouching for the witness’ character.” Robinson v. Stare, 161 So. 2d 578, 579 (Fla.-3dDCA’ 1964). UnlikeBlake, 336 So. 2d at 455, this was not a common courtesythatfollowed a specific objection. Indeed, thetrial court in the matterathand commentedafterthe closeoftestimony. By doing so, Detective Morgan's testimony was stampedwith thejudge’s official imprimatur. That is, it has always been a pleasure to see Detective Morgan, and after hearinghis testimony, the trial court wished to emphasizethatit remains a pleasure. We findthat the statement ofthe trialjudgedeprived the defendant ofa fair trial.‘ » _ . Based upon the foregoing, we ford that thetrial court erredby denying Stanleytheopportunity to comment in closing argument onthe lack of video and/or audio evidence and through the inadvertent butiimpermissible bolstering ofwitness credibility. We REVERSE. " ' ' . * . el Brown Marc Sc maeher Circuit Court Judge Circuit Court Judge J,__/L771./.Mo>L //zs/ww D e Date - - r l The Court wishes to emphasize that it sees nothing untoward in the conduct ofthe trial court or the Detective. In all likelihood, the trial court's comments were simply reflexive politeness. In the context, ofthis trial, however, the timing and cordiality ofthe trial court's comments would appear quite differently to a sittingjury. ~ Page 4 of4 F