JORGE MOJICA-HERNANDEZ

v.

STATE OF FLORIDA

FIGAROLA, J.

The Appellant, Jorge Mojica-Hernandez was tried and convicted of D Influence pursuant to Section 3l6.193(l), Florida Statutes. The Defense argues that a new trial IS warranted because the trial court improperly limited the scope of voir dire by precluding the D fe . . . . . . . . e nse from Inquiring Into Jurors’ bias on a matter critical to his defense. The Defense further contends that a new trial riving Under the is warranted on the basis of the prosecutor’s improper comments during closing argument. We reverse and remand for a new trial on both grounds. The Facts At trial, the State presented the testimony of Officers Mendez and Nodal. Officer Mendez testified that he observed bloodshot eyes, the odor of alcohol, poor balance, and slurred speech upon stopping Mojica-Hernandez. Officer Mendez also testified as to Mojica- Hernandez’s poor performance on the roadside exercises stating that when asked to do the “one l W lydjéri

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l [*2] leg stand,” Mojica-Hemandez admitted “he was too drunk to do it.” There was no evidence of an erratic driving pattern or breath test results. Thus the St.ate’s case rested on the credibility of the police officers. The Defense case rested on the testimony of Dr. Aurignac, a Speech and Language Pathologist. Dr. Aurignac was called to testify regarding the Defendant’s cognitive limitations. He testified that Mojica-Hemandez suffered from a lesion in the “pre-frontal area of the brain” caused by a previous traumatic brain injury. Mojica-Hemandez was diagnosed with Moderate Cognitive Linguistic Disorder. The disorder is characterized by poor attention, memory, information processing, word finding, executive function, and speech sound production. Dr. Aurignac explained that Mojica-Hemandez’s “labored” speech could be mistaken for slurred speech. In addition, the traumatic brain injury could affect Mojica-Hemandez’s ability to react in a situation where he is asked to multitask. Dr. Aurignac opined that it would be difficult to discern whether Mojica-Hemandez was impaired by alcohol or simply suffering from his condition. VOIR DIRE -a__ I-IG ':nF-Jll Q-P “ * issue ‘Defore the Court is Whether the trial court abused its discretion by limiting defense coLmsel’s voir dire examination concerning jurors’ willingness to evaluate expert testimony regarding cognitive limitations. The voir dire took two days. The Defense attempted to address the issue during the first day with the following question: Defense: The other thing I wanted - I want to know is, if you hear evidence of some type ofcognitive disability from a credible-credible witness, would you be able to listen- Prosecutor: Objection. The trial court held a sidebar conference during which the State objected maintaining that the Def .1 ' = The Defe edge ' ' (D3 CO(D¹:25 E9. 0+=3i '€:("FE5("IQ r+CD *3(D E?(D (DSDno(D £3OD(D E:CD 15II £2. E?ER (IOCD=...3(IQ I...Ei<3 I details of the Defendant’s diagnosis would be pre-trying the case and assured the trial court that they were not seeking to go into the specifics of the expert’s testimony or diagnosis. The Defense maintained however that it was necessary for their theory of defense to question the jurors regarding their willingness to consider the testimony of an expert. The trial court [*3] sustained the State’s objection and instructed the parties to “step back.” The Defense continued voir dire examination without any further inquire into the area sustained by the trial court. In a further attempt to inquire into an area critical to the defense case yet attempting to abide by the trial court’s ruling of the previous day, the Defense asked the panel: “Can anyone think of a reason, other than impainnent, why someone may not perform well on roadside exercises?” The jurors responded by giving examples, such as “neurological problems,” “inability to concentrate,” and “needing to go to the bathroom.” The Defense then asked: “is there anybody that would disagree with some ofthe comments that we’ve gotten from everybody on the panel; that the only reason someone would do poorly on exercises, would be because of impairment?” There was no audible response from the panel. Although “the scope of voir dire questioning rests in the sound discretion of the court and will not be interfered with unless that discretion is clearly abused,” Franqui v. State, 699 So. 2d 1312, 1322 (Fla. 1997), a trial court “may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case.” Ingrassia v. State, 902 So. 2d 357, 359 (Fla. 4th DCA 2005). The trial court’s limitation of examination of the jury by the Defense in this case went to the very heart of the defendant’s case and was thus an abuse of discretion. The question posed by defense counsel during the first day of trial did not involve the facts of the case nor reveal the specifics of expert testimony or diagnosis. The Defense specifically inquired whether the jury would be able to “listen” to the evidence. The question was not designed to gamer a commitment from the jury on the ultimate issue. Moreover defense counsel readily acknowledged that detailing the expeIt‘s testimony would be pretrying the case and that there were no plans to do so. The defense maintained that inquiry into the jurors’ willingness to hear and evaluate expert testimony was critical to their defense. In an effort to address the trial court’s concern, the defense offered to refer to a “disability” and drop the word “cognitive” when probing jurors regarding their willingness to listen to expert testimony in this area. The defense position was thus clearly articulated to the trial judge however the court sustained the State’s objection and instructed the parties to “step back” and continue the examination. The Defense abided by the trial court’s ruling and did not pursue the line of questioning any further. [*4] The State maintains that the Defense was not prohibited from posing additional questions and should have pursued the matter in spite of the trial court’s instruction to “step back” after ruling on the issue. The State is incorrect. The colloquy between the court and defense counsel reasonably indicated that the trial court had ruled and that the defense would not be permitted to inquire any further. See Ingrassia, 902 So. 2d at 358, n 1. The orderly conduct of a trial requires that a defendant and his attorney obey the rulings of the trial judge and appeal those ruling they find objectionable. Vizzi v. State, 501 So. 2d 613 (Fla. 3d DCA 1986). Any further inquiry by the defense at that point would have been contrary to the trial judge’s ruling. Moreover contrary to the State’s contention, the questions posed to the jury on the second day of the voir dire examination did not cure the error. Questions designed to explore whether jurors could accept reasons other than intoxication or the use of substances as grounds for the poor performance of roadsides did not allow the defense to properly probe the jurors’ attitude toward expert testimony. The trial court’s limitation of the defense examination of the jurors was thus an abuse of discretion which went to the heart of the defendant’s theory of defense and deprived Mojica-Hernandez of a fair and impartial jury.

CLOSING ARGUMENT COMMENTS

The second issue before the Court is whether the prosecutor’s improper comments during the closing arguments deprived Mojica-Hemandez of a fair trial. The Defense filed a motion in limine to prevent the prosecutor from violating the rule in State v. Meador, 674 So. 2d 826 (Fla. ~=: II->- C7('111> ..¢ VD\tD C>'\§_/ Cd(1 PP :.¢G ,_..CL. {IL"1E. _ _._L‘.__._ ._.__-____ .__-._...-_ .__-¢ -1‘ 4.1-- 4L,!._i T__ lI_ -.J.._, A-1--_ 1'.‘_...,4.1- T\§.__4...ZA_ IUIU UUIIIIIICIIUCIIICIII. U¹ Id. at 833. The Defense thus requested that the State avoid using language such as “pass,” “fail,” or points.” At trial, the prosecutor asked the officer if he “always arrested everybody that he stopped?” The officer responded: “Who I believe is a DUI?” ...“No because that‘s what the exercises conclude.” Defense counsel’s objection was overruled. The State’s objectionable questioning of the officer was then compounded by a number of improper comments during the closing arguments: [*5] Th exchange: € The State argued that the Defendant “failed to perform these exercises” and queried whether it “was [it] reasonable for him to fail to perform adequately on the exercises, based on his deficits, if he had no alcohol in him?” [Y]ou don’t get to have an expert come in and say, that you, as a jury, should find him Not Guilty because he was not known to the officer. The Defense objected on the grounds that the comment was a denigration of the defense. When you start at a lower baseline to begin with and you combine alcohol with that, you don’t get to have an expert come in and tell you, well, he was not impaired because he has mental deficits. The idea that I insinuate that [Mojica-Hemandez is] stupid? No I think he’s very smart. This is why, because he’s got an expert sitting here, telling you that you should find him Not Guilty. His mental deficit does not give him a pass to break the law. And, if you find him Not Guilty, that’s exactly what he’s getting, because he’s telling you that, ‘I have mental deficits,’ if you don’t, then I have alcohol. Don’t give him that pass.

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111111 lll\4 Ila-§D U¹ l.J11V111E LJ11\.l\a¹ 1lll1LlU11\/U, because he has mental deficits. defense also objected to denigration of the defendant’s case during the following Prosecutor: In this case, when the Defendant drove that night, he was breaking the law because it- he was driving under the influence of alcohol. So this idea that is given to you during Voir Dire by the defense- Defense: Objection. Denigration ofthe defense. Court: The objection is overruled. Prosecutor: The idea that was given to you, on Monday, that the fear that the Defense may have for not blowing, that you don’t know what’s going to happen, or it’s not working properly; that’s ridiculous. There’s no evidence that the instrument was not working properly. The defense also objected to additional improper comments during the State’s rebuttal closing argument and moved for a mistrial: [*6] [fjorget everything else. He could perform - you know, she [Dr. Aurignac] did not even look at the piece ofpaper that you don ’t have to get, because it’s - it’s hearsay. They have to sign.- The motion for mistrial was denied and Mojica-Hernandez was ultimately found guilty by the jury- “It is improper for a prosecutor to ridicule a defendant or the defendant’s theory of defense, (citation omitted), or express a personal belief in the guilt of the accused.” Riley v. State, 560 So. 2d 279, 280 (Fla. 3d DCA 1990). A prosecutor’s argument “suggesting to the jury that there is evidence harmful to the accused that the jury did not hear is highly improper.” Ford v. State, 702 So. 2d 279, 281 (Fla. 4th DCA 1997). Where a defendant has complained on appeal of both objected-to and unobjected-to errors in closing argument, the appellate courts should consider whether the cumulative effect of those errors deprived the defendant of a fair trial. See Ruiz v. State, 743 So. 2d 1, 7 (Fla. 1999). The cumulative effect of improper comments in the instant case requires reversal of the defendant’s case. The prosecutor made numerous remarks that improperly denigrated Mojica-Hemandez and his theory of defense. Such comments as “you don’t get to have an expert come in and tell you, well, he was not impaired because he has mental deficits,” and “[h]is mental deficit does not give him a pass to break the law” denigrate the defendant and the theory of defense which was centered around Dr. Aurignac’s testimony. Furthermore the prosecutor’s remark that Mojica- Hemandez was “very smart,” “why, because he’s got an expert sitting here, telling you that you should find him Not Guilty,” improperly suggested that Mojica-Hemandez was trying to evade responsibility for his criminal actions. These comments, particularly when taken in light of the improper limitation of the defendant’s voir dire examination into the jurors’ view on expert opinion fundamentally tainted the trial so as to require a new trial. Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008). The comments however were further augmented by a number of improper comments regarding Field Sobriety Exercises (FSEs). The prosecutor asked the officer if he “always arrested everybody that he stopped?” to which the officer responded “Who I believe is a DUI?” ...“No because that‘s what the exercises conclude.” Once again, the impropriety of this line of questioning was augmented by comments during closing argument. The prosecutor told the jury [*7] that Mojica-Hemandez “failed to perform these exercises” and asked “was it reasonable for him to fail to perform adequately on the exercises, based on his deficits, if he had no alcohol in him?” Although the State argues that the prosecutor’s use of the word “fail” is just another way of saying Mojica-Hemandez performed poorly on the FSEs, the use of the word “fail” in this context attached scientific validity to the FSE5 and is contrary to the ruling of Meador v. State, 674 So. 2d at 833. Additional comments were made during the rebuttal closing when the prosecutor suggested there was additional incriminating evidence that the jury was not privy to: “Forget about everything else. He could perform-you know, she [Dr. Aurignac] did not even look at the piece of paper that you don’t have to get, because it’s- it’s hearsay. They don’t have to sign.-” An argument suggesting the existence of evidence harmful to the accused that the jury is not able to evaluate is highly improper. Ford v. State, 702 So. 2d at 281. In order for cormnents to merit a new trial, the corrnnents must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict that it would have otherwise.” Salazar v. State, 991 So. 2d at 32 citing Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994). The totality of prosecutorial comments in this case went to the very heart of the defense case and improperly deprived the defendant of a fair and impartial trial. These comments were particularly injurious given limitation of defense counsel’s voir dire examination on an area critical to the defense case. Therefore although mindful of the pressures trial courts face during a jury trial, the Court finds that the number of improper comments coupled with the crunulative effect of the errors in this case deprived the defendant of a fair and impartial and were of such a nature so that they might have influenced the jury to reach a more severe verdict that it would have otherwise. REVERSED and REMANDED FOR A NEW TRIAL. ESPINOSA DENNIS and THORNTON, JJ., concur. °‘$FL<>"E°°‘&¢.¢““anwI r, A ~Immw-