Friday, April 21, 2006

JUDGE SILVER APPOINTED TO CIRCUIT COURT. REVIEW 3RD DCA APPLICATION ON LINE HERE!!!

County Court Judge Silver was appointed to a Circuit Court Seat yesterday by our Governor Jeb “ Mom, when do I get to play President? “ Bush.

And the Captain is quick with an election analysis:

In GROUP 30 - COUNTY COURT ...Judge Roger Silver is the incumbent and his term runs until January 1, 2007.
Stephen Millan was the first to file in that division. He hoped to cause Judge Silver to retire. Then Robert Twombley filed. Judge Silver never filed for re-election.
Judge Silver did put his name in for the Circuit Court seat that he was just appointed to.This presents an interesting issue. Can Governor Bush ask the JNC to give him six names to replace the now open County Court Judge Silver seat? If so, and he appoints a new Judge, the law says that that Judge would not have to stand for re-election in this cycle and would not have to run until 2008.
All this would result in Millan and Twombley having to file in another division or simply wait until 2008. In the words of Colonel Klink ..... "verrrry interestingggg"

Rumpole notes: Silver didn't file for re-election for county court, and snags a Circuit Court slot??? Very interesting indeed.

On the Ray Sarmiento matter, from a personal standpoint, we are glad no charges were filed against Mr. Sarmiento. From a professional standpoint, outside of extraordinary circumstances, there is no practical way Mr. Sarmiento could return to his job as a prosecutor. We wish him well.


Anonymous wants to know:

ROGER SILVER??????!!!?!?!?!?Who else was sent to the Guv, Rumpy?


Sneezy, Grumpy, Humpty Dumpty,…no seriously….Lindsay, Arzola, OK. We will stop being funny. We have no idea who was sent to the governor. Why would we care?

For all of the problems about judicial campaigns, seeing the effects and performance of the Governor’s last few appointments, maybe elections are not so bad. For instance, to be elected, you need to fill out some forms, sign your name, and make a blasted decision about what race to run in. Thus the qualities of being decisive and being able to fill out a form are qualities we have not yet seen in some of the recent appointments. Without (yet) naming names, there is a “deer in the headlights” quality to some of these new Judges.

Case in point before a new Judge appointed by the Governor.

Judge: The State made you a plea offer of a $500.00 fine.
Defendant: I can’t pay a fine.
Judge: Do you want a trial?

Defendant: NO.

Thus confronted by a defendant who did not want a trial, and could not pay a fine, the Judge’s arraignment calendar ground to a halt, as this Judge, much like a mouse in a maze, could not for the life of her, figure out what to do next. It would have been funny, if not for the fact that this was the person the Governor thought to be the best and brightest candidate for the bench.

Just another day at our fair Justice Building.


Speaking of "best and brightest"...

THE JNC IS SEEKING CANDIDATES TO THE THIRD DCA:

We took the time to re-print the letter seeking nominations to the Third DCA:


WANTED: ONE APPELLATE COURT JUDGE.

QUALIFICATIONS: MEMBER OF THE BAR. REPUBLICAN OR TO THE RIGHT OF REPUBLICAN. Cannot have practiced criminal defense law. Cannot have ever said anything nice about a criminal defense attorney or a defendant.

The ideal applicant will be a Judge who has never granted a motion to suppress, a JOA, or sentenced a Defendant to anything under the top of the guidelines. Having never granted a motion for a defense continuance is a plus.

Must work well with Judge Rothenberg and be willing to overlook, ignore, or explain away at least eight of the first ten amendments to the Constitution.

Legal research skills must be limited to the late 1700’s case law, as only those candidates that promise to apply only the original intent of the framers will be considered, especially in cases involving the internet, computers, telecommunications, or searches of automobiles.

Membership in organizations that espouse the belief that the United States Of America is a Christian Country, and that separation of church and state is an outmoded concept will receive a favorable and expedited review.

Democrats, people who read books other than the Bible, and defense attorneys need not apply.

Pay flexible based on experience.
Ask about our ‘per curiam affirmed” bonus program for criminal appeals!!!!



See You In Court avoiding the 3RD DCA.


80 comments:

Anonymous said...

ROGER SILVER??????!!!?!?!?!?

Who else was sent to the Guv, Rumpy?

Anonymous said...

I thought Silver was retiring rather than running. Isn't that the seat Milian and Twombly are running for?

CAPTAIN said...

In GROUP 30 - COUNTY COURT ...

Judge Roger Silver is the incumbent and his term runs until January 1, 2007.

Stephen Millan was the first to file in that division. He hoped to cause Judge Silver to retire. Then Robert Twombley filed. Judge Silver never filed for re-election.

Judge Silver did put his name in for the Circuit Court seat that he was just appointed to.

This presents an interesting issue. Can Governor Bush ask the JNC to give him six names to replace the now open County Court Judge Silver seat? If so, and he appoints a new Judge, the law says that that Judge would not have to stand for re-election in this cycle and would not have to run until 2008.

All this would result in Millan and Twombley having to file in another division or simply wait until 2008.

In the words of Colonel Klink ..... "verrrry interestingggg"

Anonymous said...

North of the Border is just different.

Attorney Admits To Paying Off Murder Witness
Lawyer Avoids Criminal Charge, Could Be Disbarred
http://www.local10.com/news/8887614/detail.html

I think even KFR would be hard pressed NOT to prosecute this guy.

CAPTAIN said...

To the blogger who asked for the names of those sent up by the JNC to Gov. Bush (for the Circuit Court seat of Judge Manny Crespo) now soon to be occupied by Roger Silver, they were:

Douglas Chumbley
Reemberto Diaz
Scott Fingerhut
Edith Osman
Judge Silver
Lisa Walsh

NEW OPEN CIRCUIT COURT SEAT

Judge Fredricka Smith will be resigning effective June 9, 2006. She was reelected without opposition in 2004 to serve a six year term.

Anyone who knows Judge Smith, knows that Gov. Bush will have a very difficult time replacing such a well qualified, experienced jurist in Judge Smith.

and the Captain is out ......

Anonymous said...

A defense lawyer pays off a witness in a MURDER case and gets diversion because the lawyer was a first time offender and his actions were non-violent? The resolution is DISGUSTING.

How many lives did he jeopardize by paying off the witness (yes, the murderer was convicted, but that's not the point).

UNREAL.

Anonymous said...

who was his atty? if i ever get touched i want him!!!

Anonymous said...

The answer to the Captain's pondering rests with the Florida Supreme Court. The day before the Governor appointed Judge Silver, his office made a request for an advisory opinion from the Court. They also requested an expedited answer to the process. To verify this just go to the Florida Supreme Court website at Floridasupremecourt.org. go to the public information section. I do believe the captain's analysis is correct and ultimately, the candidates will have to find other opponents or wait for the Legislature to create the seats in this pending session or wait until 2008. We shall see. As they say "It is what it is".

Anonymous said...

maybe he did jeopardize lives by interfering with that prosecution. maybe the murder was a one time thing and no lives would ever be in harms way in the future re: that defendant. perhaps he will go on to open a soup kitchen and feed a plethora of starving mouths....

Anonymous said...

it is shocking that rational; first time and non-violent. i think 5 yrs suspension is adequate.

Anonymous said...

read Stephen Pincket v. Katherine Harris appointment vs election open seat during election year.

Anonymous said...

keep on keepin on......

Anonymous said...

I have a question for all those who are defending Glazer on here: what planet are you on? Mindy Glazer is one of the worst judges on the bench--she's dumb, rude, and unpleasant. She needs to be removed from the bench, and if Christina Miranda is going to be the one to do it, I say more power to her!

Worst judges:
Glazer
Rippingille
Langer
Johnson
White-Labora

Notice how the powers that be stick these people in Juvenile and Domestic Violence Court where they won't encounter as many private attorneys? Well, we PDs and ASAs still have to deal with them and they're wildly unqualified.

Anonymous said...

all of those judges you named are far from the worst on the bench...here are some far "worser" ones...
Jumenez
D. Miller
Arzola
Lindsay
Areces
Samuels

Anonymous said...

glazer is desperate. she is already out putting up signs....

Anonymous said...

judge glazer knows the law, is polite, on time ... and very easy on the eyes!!!! the civil lawyers love her decisiveness and intellect. we need an entire court house of young hottie judges!!!

Anonymous said...

So what exactly is the criteria for worst judge?

Anonymous said...

Re: the 9:48 post: Mindy, you should really stop posting about yourself. It's so seventh grade.

Anonymous said...

re mindy glazer:
is it true that she thinks that Echarte put Mirranda in the race against her and has said that she will run against Echarte if she is defeated? If so, perhaps she needs a healthy dose of seroquel.

Anonymous said...

I tried typing in the address to the news 10 article on the attorney who paid off the witness but nothing comes up. Who was the defense attorney?

Anonymous said...

Hillard Moldof

Anonymous said...

Why is the formatting on this blog so screwed up?

Anonymous said...

there's a few more bad judges that get off too easy on this blog. perhaps because they're new or no one really knows how they screw up. I will nominate Peter Adrien as a bad judge.
Barzee is a good judge, knows what she's doing. doesn't care for fools. she's a woman that wears lipstick, we should all appreciate that.

Deliberating said...

Anyone get the call on May Andersen?

Anonymous said...

Another chance lost to add an excellent and ethical lawyer we all admire to become judge.

Gov. Bush needs to reevaluate his choice for judge. Sorry to hear Fingerhut didn't make it , He would have been one of the best judges we all could stand in front of, but until then,

We should continue to watch and learn from such a brilliant man. I welcome his advice any day.

Anonymous said...

I know ya'll are focused on criminal... but the worst circuit court judge, bar none, is Esquiroz.

Every ruling, regardless of the law, is made by splitting the baby in the middle. If you need to win a motion, file two. Graciously cave on the first and she'll hand you the second.

Anonymous said...

I agree...

Fingerhut should have become the next judge.

And while some are talking about judges that wear lipstick and are easy on the eyes, have you seen Judge B. Miller at S. Dade! Yes she's new and needs a little help now and then on the rules,but she is very nice to look at up there and the robe adds to the fantasy .

Anonymous said...

IS A POST ON THIS BLOG REALLY ANONYMOUS? DOES THE BLOG MASTER PHIL KNOW WHO IS SENDING IN COMMENTS FROM THEIR EMAIL ADDRESS?

Anonymous said...

Douglas Chumbley
Reemberto Diaz
Scott Fingerhut
Edith Osman
Judge Silver
Lisa Walsh

Don't know Chumbley, so I won't comment. Exluding him, the Governor took the fifth best candidate and made him a Circuit Court Judge. Unreal.

Miguel M. de la O said...

Rumpole: Here's the Sun-Sentinel story on the witness tampering charge in Broward:

http://www.sun-sentinel.com/news/local/broward/sfl-sdomain221apr22,0,4775234.story?

Anonymous said...

It's obvious that Bush likes to appoint county court judges to the circuit bench so as to give him yet another appointment to make as he controls the Gestapo (nee Judicial Nominating Commission). Bush will do anything possible to make the appointment for Silver's seat and not let Millan and Twombley duke it out. I agree with a previous blogger, with the exception of Chumbley who I don't know, the other nominees (Diaz, Fingerhut, Osman and Walsh) would make fine judges.

Anonymous said...

im waitin for may to call me. please call me may!

Anonymous said...

hey captain:

can we have an update on all the new filings for the judges and candidates? you gave us a few only.

Anonymous said...

Not that I could replace the captain, but I checked the state and county websites and no new filings other than the ones we've been talking about already.

Anonymous said...

i understand she has hired a top notch experienced trial attorney, but i dont know his name.

Anonymous said...

Hey Captain-
How about a poll as to what judges
in Broward deserve opposition, in
case anyone out there is thinking of running???

Anonymous said...

The Channel 10 report of Moldoff was better than the Sun-Sentinel's, which had no outrage to it.
Why do you think Miami ducked it?

Anonymous said...

Interesting choice by KFR to assign Michael Van Zamft (a veteran defense attorney himself) as the prosecutor on the Moldof case.

CAPTAIN said...

NORTH OF THE BORDER:

A blogger has asked about the action taking place in Broward County in the judicial races.

The fact is, the competition for the fifth starter in the Marlins rotation is more intense than any of the judicial races taking place in Broward.

In the County Court, there are no challengers:

Judge Murphy
Judge Zack
Judge Feiner
Judge Berman
Judge Zeller
Judge Diaz
Judge Spechler
Judge Schiff
Judge Fishman
Judge Gehl
Judge Lerner-Wren
Judge Lee

... are all up for reelection and have drawn not a single opponent.

In the Circuit Court:

Judge Andrews
Judge Eade
Judge Rothschild
Judge Beach
Judge Gardiner
Judge Ross
Judge Backman
Judge Holmes
Judge Speiser
Judge Birken
Judge Geoffrey Cohen
Judge Rosenberg
Judge Weinstein

... are all up for reelection and have drawn not a single opponent.

There is one lone contested race in Broward County, in the Circuit Court, for an open seat:

Group 6

Charles Kaplan

vs.

Kenneth Padowitz

Mr. Kaplan has raised $68,003 and added $50,000 of his own money. He has spent $5,000 on a company named Sunnyside Politics, a consulting company out of Palm Beach Gardens.

Mr. Padowitz, of Lionel Tate fame, has raised $85,448 and has added $101,000 of his own money. He has spent $20,000 on someone named Tony Gargiulo, a campaign manager from Lauderdale Lakes.

So that's the story .... North of the Border.

CAPTAIN ... OUT....

Anonymous said...

Rumpal, Capitan and others, here is a riddle:

What does Alberto “Al” Milian, Robert Petrieta, $25,000 and a Judicial Election have in common?

Answer: Candidate Migna Sanchez-Llorens.

To Elaborate: Of course, allegedly, Migna pays Robert a whopping $25,000 for him to run her campaign, he pays Al who is so loved by the community part of that $25,000 to actually do the campaign as he does not want to appear in the books or openly to be campaigning. (Might have to do with how much he is loved by everyone.) Al was never going to run; he wanted to create the illusion as well as commotion for him to feel popular again while he got Migna a seat or two. (He is obviously earning more than he ears as a lawyer with Robert.)

Conclusion: I am proud to say that neither I nor anyone I know who is sane will vote for anyone who Alberto “Al” Milian is representing, associated with or friends with. Nothing personal, but I think that any friend (including Mr. Petrieta who I never seen, but must be as crazy as Al) of Al is not worthy of my vote or the votes of a sane community. (Captain can you please get us the cases from Broward and show the Blog Community. I don't have Lexis... :-( to put it here. Sorry Migna. I am voting for Shelly. GOT THAT, JUST SAY NO TO DOPES! NO AL, NO ROBERT, NO PROBLEM.

This is a community service announcement against while and crazy guys… The information on this message is for entertainment purposes only as well as being only an opinion with alleged facts.

Anonymous said...

Oh, At the Maria Elvira show last week Robert Pettrieta him and Al are the best of friends and that they hate KFR. He did not he would not say it on TV and would deny saying it if asked. In other words, we are back to allegedly.

Anonymous said...

Can some one please tell me about the incident where Judge Miller reported Judge Young for dressing like a penguin for Court? I heard the rumor and want to see if anyone else can verify it.

Anonymous said...

Where is Judge Pando? Captain, has she raised any funds? Seems she is dropping out of the radar? Is she once again under some sort of investigation or what is the matter? It may be and would be the reason why she is going incognito and seems her fundraising is none existent. Rump and or Captain, would you please sort this out for us. Is she raising much dinero or no dinero. Any surgeries in the way? Is Judge Pando in trouble again? By the way, how is her Bailiff Arthur doing on his bid for State Representative which I hear was born in Chambers?

Anonymous said...

Someone wrote that Langer is a bad judge. Wrong! The guy knows the law, knows what he's doing, and runs quick, efficient, painless calendars. If you're a PD, his surly demeanor can dampen your day sometimes (if you let it, and why would you?), but overall he's a very good judge. Glazer is not as bad as some of the other bloggers have claimed. She needs to learn to be more punctual, but overall not a bad judge at all.

Anonymous said...

Langer is a nice guy and a good judge. Glazer on the other hand, has done nothing to distingish herself. She has a serious problem if Mirranda puts in against her.

Rumpole said...

Captain, please send us your email address.

Rumpole said...

Captain, please send us your email address.

Anonymous said...

Langer is a super nice guy. My only problem with him is that he seems to think everyone walking into his court room should (regardless of the case) be under his direct supervision until they are in their 20's. some should, but we dont need our population being always watched by big brother.

anonymous orwell

Anonymous said...

If Fingerhut had gotten the appointment would he have to stop being Rumpole?

Anonymous said...

Al Milian is the biggest jerk to walk into a courtroom with a brief case.

He is rude, agressive and obnoxious.

He beats people up, intimidates people and is hated by many.

Now... let me tell you how I really feel about big Al...

Anonymous said...

Al is a nice guy. Sit down and talk to him. Is he a little crazy? Yes. But who the hell working in this buisness that is any good is totally sane? And by the way, he is not going to run against Lester Langer so stop worrying about that.

Anonymous said...

The person who wrote that nice thing about Milian is not living in a real world.

Nice lawyers do not punch lawyers in the face in a hallway....

Anonymous said...

actually it was an elevator - you know - no place to run, no place to hide

Anonymous said...

yes i am. living in the real world that is. and i dominate in court with frequency.
sometimes people loose their tempers and fight. lawyers are no different. i'm sure that he is not proud that he hit the guy. it was unprofessional to say the least. all i'm saying is this. if you ever sit down and talk with the man you might be shocked. i was.

Anonymous said...

is phil out of town?

Anonymous said...

Some lawyers deserve to be punched.

Al

Anonymous said...

like John Schwartz

Anonymous said...

New poll...
what lawyer would you most like to punch?

Anonymous said...

That ASA in Lindsey. Clueless Judge + Clueless Prosecutor (with an attitude)= A Beating For Both!

Anonymous said...

From Susannah Nesmith, Rumpole's favorite Herald Scribe _

Not to worry, we did not pass on the Moldof story. Here it is for anyone who missed it:

Posted on Mon, Apr. 24, 2006
JUDICIARY
Defense attorney faces disbarment
Prosecutors are asking the Florida Bar to suspend the license of powerhouse Broward criminal defense attorney Hilliard Moldof for up to one year.
BY WANDA J. DeMARZO
wdemarzo@MiamiHerald.com
Broward criminal defense attorney Hilliard Moldof may have his law license suspended after prosecutors say he admitted he was involved in witness tampering.

Moldof, a past president of the Broward Association of Criminal Defense Lawyers, signed an agreement with Miami-Dade prosecutors who investigated him, admitting the state had sufficient grounds to charge him with a felony. Prosecutors say Moldof had a role in paying $100 to get a convicted killer to change his testimony about whether one of Moldof's clients was involved in the 2001 killing of a Fort Lauderdale warehouse manager.

The well-known lawyer also was fined $25,000 for the cost of the investigation by the Miami-Dade state attorney's office and the Florida Department of Law Enforcement.

Moldof is said to have asked convicted killer Geoffrey Kennedy to say that one of Moldof's clients, Kevin Hoffman, had nothing to do with a murder.

Moldof, according to the investigative file, promised to set up a $20,000 trust fund for Kennedy's son for switching his testimony.

Moldof was accused of having his legal assistant mail a $100 money order to a pen pal who forwarded the money to a jailed Kennedy as a down payment for changing his testimony during Hoffman's upcoming murder trial.

The $100 money order was ''to curry favor,'' according to the state attorney's office.

''Moldof has admitted to violating Bar rules and that he could have been charged with tampering,'' according to the March state attorney's internal memo. But Moldof said he never admitted to witness tampering and that he passed a polygraph.

Kennedy and Hoffman were charged with torturing and beating Michael Sortal, 47, to death on March 15, 2001, in his Fort Lauderdale apartment. The two men then robbed Sortal, police said. Kennedy was convicted in January 2002 of Sortal's murder and sentenced to life in prison. He initially agreed to testify against Hoffman, but changed his story, claiming he acted alone.

In 2003, Kennedy changed his story again, telling Fort Lauderdale homicide investigators that he was offered money to recant his earlier statement against Hoffman -- who was Moldof's client until July 30 when Broward Circuit Judge Susan Lebow replaced him.

Hoffman's first-degree murder trial is still pending.

State and local law enforcement officials have been investigating the allegations ever since.

In 2004, Gov. Jeb Bush's office asked the Florida Department of Law Enforcement and the Miami-Dade state attorney's office to investigate possible witness tampering and allegations of professional misconduct by Moldof.

Since Moldof is so well-known in Broward, Bush asked for an independent prosecutor to conduct the probe to avoid conflict.

On March 23, Miami-Dade prosecutors filed a complaint with the Florida Bar after concluding that Moldof violated Bar rules. But Moldof escaped felony charges.

Prosecutor Michael Von Zamft stated that while the joint investigation ''indicated that Moldof had tampered with a witness,'' felony charges would not be filed because the offense was non-violent and Moldof had no criminal history.

Instead, prosecutors decided to arrange a ``deferred prosecution agreement.''

According to the plea agreement with Miami-Dade prosecutors, Moldof must admit to the findings of the joint investigation, including that he spoke with Kennedy and that he forwarded money to Kennedy.

The state attorney's office also is requesting that the Florida Bar suspend Moldof from practicing law for six months to one year.

He must also pay $25,000 for the cost of the two-year probe.

Moldof said last week that ``there's a lot more to the story than what the state attorney's office has given to the press.''

His attorney, Mike Dutko, said ''a just and fair resolution will be achieved'' once the Florida Bar has reviewed the case.

Anonymous said...

That "non-violent" thing is some funny shit. Guy deserved 5 yrs. prison. What a joke!

Anonymous said...

indeed. he will never practice law again if those facts are true.

Anonymous said...

THE FLORIDA BAR, Complainant(s) vs. ALBERTO MILIAN, Respondent(s)

CASE NO.: SC00-306

SUPREME COURT OF FLORIDA

770 So. 2d 162; 2000 Fla. LEXIS 1807


August 31, 2000, Decided

NOTICE: [*1]

DECISION WITHOUT PUBLISHED OPINION

PRIOR HISTORY: Lower Tribunal No.: 2000-50,311(17I).

OPINION: The Court approves the uncontested referee's report and reprimands respondent. Respondent is further directed to comply with the other terms and conditions stated in the referee's report.

Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Alberto Milian in the amount of $ 1,899.74, for which sum let execution issue.

Anonymous said...

ALBERTO MILIAN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 4D99-3543

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

764 So. 2d 860; 2000 Fla. App. LEXIS 10137; 25 Fla. L. Weekly D 1868


August 9, 2000, Opinion Filed

SUBSEQUENT HISTORY: [**1] Released for Publication August 25, 2000. Petition for Review Denied March 13, 2001, Reported at: 2001 Fla. LEXIS 594.

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 99-16927 CF10A.

DISPOSITION: AFFIRMED.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant, an assistant state attorney, sought review of an order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), which found appellant guilty of indirect criminal contempt, and alleged that the finding of contempt was error because there was insufficient evidence that appellant intended to hinder the administration of justice.

OVERVIEW: The court affirmed appellant's conviction for indirect criminal contempt. Appellant, an assistant state attorney, engaged in an altercation with opposing counsel outside the presence of the court, but in the vicinity of a juror impaneled on the case. As a result, opposing counsel moved to dismiss for prosecutorial misconduct, mistrial, and disqualification. Appellant argued that the evidence was insufficient to show that appellant intended to hinder the administration of justice. On review, the court found that contempt was defined as any act that was calculated to embarrass, hinder, or obstruct the court in the administration of justice. The court further found that the trial court's findings were supported by substantial evidence, and were accepted as true. The court held that the requisite intent for indirect criminal contempt could be inferred from the actions of appellant where it was foreseeable under the circumstances that appellant's conduct would prompt action disruptive of court proceedings, and the court would not disturb the trial court's factual findings because they were supported by competent substantial evidence.

OUTCOME: Appellant's conviction for indirect criminal contempt was affirmed because the requisite intent was inferred from the actions of appellant, because it was foreseeable under the circumstances that the appellant's conduct of engaging in an altercation with opposing counsel in front of an impaneled juror would prompt action that would disrupt the court proceedings.

CORE TERMS: altercation, juror, criminal contempt, indirect, opposing counsel, contempt, state attorney, elevator, substantial evidence, psychiatrist, foreseeable, contemnor, inferred, prompt, hinder, floor, requisite intent, intent to commit, calculated, disrupt, epithet, final judgment, precipitated, interrupt, hallway

LexisNexis(R) Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Contempt

HN1 Contempt is defined as any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity. A judgment of contempt is entitled to a presumption of correctness and it will not be disturbed when supported by the record. More Like This Headnote


Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review


Civil Procedure > Trials > Bench Trials

HN2 An appellate court will not disturb a trial court's factual findings when supported by competent substantial evidence; however, the appellate court is not bound by a trial court's conclusions of law. More Like This Headnote


Civil Procedure > Sanctions > Misconduct & Unethical Behavior


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Contempt

HN3 The requisite intent for indirect criminal contempt can be inferred from the actions of the contemnor where it is foreseeable under the circumstances that the contemnor's conduct would prompt action disruptive of court proceedings. More Like This Headnote


COUNSEL: J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michael J. Neimand, Assistant Attorney General, Fort Lauderdale, for appellee.

JUDGES: DELL and GUNTHER, JJ., concur. SHAHOOD, J., dissents with opinion.

OPINION: [*861]

PER CURIAM.

The Appellant, an assistant state attorney, appeals the final judgment finding him guilty of indirect criminal contempt. He asserts the finding of contempt was error because there was insufficient evidence that he intended to hinder the administration of justice. We disagree and affirm.

HN1Contempt has been defined as "any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity." Murrell v. State, 595 So. 2d 1049, 1050 (Fla. 4th DCA 1992). "A judgment of contempt is entitled to a presumption of correctness and it will [**2] not be disturbed when supported by the record." Berman v. State, 751 So. 2d 612, 614 (Fla. 4th DCA 1999). Likewise, HN2an appellate court will not disturb a trial court's factual findings when supported by competent substantial evidence; however, the appellate court is not bound by a trial court's conclusions of law. See generally Oceanic Int'l Corp. v. Lantana Boatyard, 402 So. 2d 507, 511-12 (Fla. 4th DCA 1981); Glover v. State, 677 So. 2d 374, 376 (Fla. 4th DCA 1996); Clegg v. Chipola Aviation, Inc., 458 So. 2d 1186, 1187 (Fla. 1st DCA 1984).

After hearing testimony, the trial court found the Appellant guilty of indirect criminal contempt and entered the following order:

1. On August 23, 1999, while in the Broward County Courthouse, but outside the presence of the Court, Alberto Milian, being annoyed and angered after opposing counsel elbowed him in the side on an elevator, did knowingly and intentionally engage in a physical altercation with opposing counsel under circumstances which would reasonably tend to interrupt the administration of justice and did in fact interrupt the administration of justice.

2. The [**3] altercation occurred in the open hallways of the 3rd floor of the County Courthouse at approximately 3:00 p.m. in the presence of several people.

3. The altercation occurred following the empanelment of a jury after the Court recessed the trial for the day.

4. The altercation occurred after a juror rode on the elevator with Mr. Milian and opposing counsel from the 5th floor to the 3rd floor. The juror exited the elevator just ahead of Mr. Milian and opposing counsel.

5. The juror was in the vicinity of the altercation when it began, and actually witnessed part of the altercation.

6. Certainly it was reasonable to conclude that jurors were or could have been in the area where the altercation occurred.

7. It is equally reasonable to conclude that any juror witnessing the altercation would be adversely influenced.

8. Opposing counsel sustained a noticeable injury to his eye as a result of the altercation.

9. The following day opposing counsel moved the Court for orders dismissing the case (State v. Decker) based on [*862] prosecutorial misconduct, a mistrial, disqualification of Mr. Milian and the State Attorney's Office, and sanctions against Mr. Milian.

10. The hearing of the above [**4] matters interrupted the administration of justice and consumed a considerable amount of the Court's time.

11. The above motions and subsequent hearings were a direct result of and precipitated by the conduct of Alberto Milian.

In consideration of the above findings, this Court is convinced that the evidence adduced proves beyond a reasonable doubt Alberto Milian's guilt of Indirect Criminal Contempt. Accordingly, Mr. Milian is hereby adjudged guilty of Indirect Criminal Contempt.

Because the trial court's factual findings are supported by competent substantial evidence, we accept them as true.

With regard to the legal conclusions, although we have failed to find a Florida case directly on point, we find People v. Ziporyn, 106 Ill. 2d 419, 478 N.E.2d 364, 88 Ill. Dec. 49 (Ill. 1985), a case decided by the Illinois equivalent of our supreme court, both factually analogous and persuasive. We interpret Ziporyn to stand for the proposition that HN3the requisite intent for indirect criminal contempt can be inferred from the actions of the contemnor where it is foreseeable under the circumstances that the contemnor's conduct would prompt action disruptive of [**5] court proceedings. In Ziporyn, the state attorney cross-examined a defense psychiatrist in a "vigorous," "extensive," and a "rather demeaning" manner. See id. at 420. As the expert left the witness stand, he whispered " a vile epithet" in the state attorney's ear. See id. While there was dispute about exactly how loud the remark was made, it is clear that the state attorney responded by repeating the remark in open court and demanding the court hold the psychiatrist in contempt. See id. The trial court found the psychiatrist guilty of indirect criminal contempt, but the intermediate appellate court reversed, concluding neither a contemptuous act nor the requisite intent had been proven. See id. at 421.

The Illinois Supreme Court reversed, concluding the evidence established the intent necessary for indirect criminal contempt. The court explained,

Defendant admitted that he made the statement, and although it is contended that it was said in a whisper, two witnesses testified that they heard him say it. Under these circumstances, it was possible that members of the jury might have overheard defendant's comments.

Defendant is a psychiatrist [**6] with considerable experience in court appearances. The intent to commit contempt of court may be inferred from the actions of the contemnor. Although, as the appellate court said, it is true that defendant could not foresee that the assistant State's Attorney would repeat the epithet and demand that defendant be held in contempt, it was certainly foreseeable, under the circumstances, that these "fighting words" would prompt action which would disrupt the court proceedings.

Id. at 421-22.

In the present case, not only was it probable that the juror on the elevator would see the fight between the assistant state attorney and the public defender trying the case on which the juror was serving, she did in fact witness the altercation. Moreover, because the incident occurred in the hallway of the courthouse near several people, it was certainly foreseeable that such conduct would prompt action tending to disrupt court proceedings. Indeed, the trial court was forced to expend a considerable amount of time addressing motions and holding hearings that were precipitated directly by the altercation. As such, we conclude the intent to commit contempt can be inferred from [**7] the Appellant's conduct and hold there was competent substantial [*863] evidence of intent under the facts of this case. Accordingly, we affirm.

AFFIRMED.

DELL and GUNTHER, JJ., concur.

SHAHOOD, J., dissents with opinion.

DISSENTBY: SHAHOOD

DISSENT:

SHAHOOD, J., dissenting

I respectfully dissent. While I find appellant's actions in this case to be completely reprehensible, inappropriate and totally devoid of any civility for a member of The Florida Bar, I cannot say that his actions warranted a finding of indirect criminal contempt.

I would reverse the final judgment because the evidence presented in this case was insufficient to show that appellant had the requisite specific intent to hinder the court in its orderly administration of justice. See Baitty v. Weaver, 734 So. 2d 582, 584-85 (Fla 4th DCA 1999).

Anonymous said...

JOHNNY C. BARNES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 98-0299

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

743 So. 2d 1105; 1999 Fla. App. LEXIS 7198; 24 Fla. L. Weekly D 1250


May 26, 1999, Opinion Filed

SUBSEQUENT HISTORY: Reported at: 743 So. 2d 1105 at 1109.

PRIOR HISTORY: [**1] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William P. Dimitrouleas, Judge; L.T. Case No. 97-11663 CF.

Original Opinion of February 17, 1999, Reported at: 1999 Fla. App. LEXIS 1478.

DISPOSITION: REHEARING DENIED.


CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff state moved for rehearing/rehearing en banc after the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), reversed criminal defendant's conviction for prosecutorial misconduct.

OVERVIEW: Criminal defendant obtained reversal of his conviction for prosecutorial misconduct. Plaintiff state moved for rehearing/rehearing en banc. On appeal, the court stated that, although the motion for rehearing was improper, it addressed the claims of errors and additional facts. The court denied rehearing because none of plaintiff state's contentions were sufficient to cause the panel to believe that the decision on the merits should have been changed and the facts plaintiff cited were concerned with harmless error. The court noted that only the attorney general is to represent the state in the appellate courts.

OUTCOME: The court denied rehearing because none of plaintiff state's contentions were sufficient to cause the panel to believe that the decision on the merits should have been changed, and the facts plaintiff cited were concerned with harmless error.

CORE TERMS: state attorney, supplemental, prosecutor, prosecutorial misconduct, oral argument, reply, eyewitness, assistant attorney, original opinion, corrected, ongoing, common law, identification, line-up, unauthorized, common law right, prior notice, perpetrator, objected, quarrels, photo, array, judicial circuit, unpreserved, overlooked, misconduct, preserved, prosecute, thereupon, pretrial

LexisNexis(R) Headnotes Hide Headnotes


Criminal Law & Procedure > Trials > Defendant's Rights > Right to Fair Trial

HN1 A state attorney has duty to assure defendant fair trial because state attorney is semi-judicial officer. More Like This Headnote


Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial

HN2 It is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral argument and necessarily considered by the court, or to request the court to change its mind as to a matter which has already received the careful attention of the judges, or to further delay the termination of litigation. More Like This Headnote


Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial

HN3 A motion for rehearing shall not reargue the merits of the court's order. More Like This Headnote


Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial

HN4 Motions for rehearing are strictly limited to calling the court's attention, without argument, to something it has obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only, i.e. merely point to the overlooked or misunderstood fact or circumstance. More Like This Headnote


COUNSEL: Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for appellee.

Michael J. Satz, State Attorney for the Seventeenth Judicial Circuit, and J. Scott Raft, Assistant State Attorney, Fort Lauderdale.

JUDGES: FARMER, J., GUNTHER and TAYLOR, JJ., concur.

OPINIONBY: FARMER

OPINION: [*1109]

ON MOTION FOR REHEARING/REHEARING EN BANC

FARMER, J.

The State of Florida has timely filed a motion for rehearing calling our attention, among other things, to an erroneous attribution of prosecutorial misconduct in one of the cases cited in our original opinion. The motion is not signed by the Assistant Attorney General, Don M. Rogers, who has until now represented the State in this case. On the contrary, the motion for [**2] [*1110] rehearing was signed first by Assistant State Attorney J. Scott Raft and next by a different Assistant Attorney General, namely Celia A. Terenzio. n1 Defendant's counsel conceded in a prompt response to the motion that the citation to Knight v. State, 672 So. 2d 590 (Fla. 4th DCA 1996), was in error in attributing any misconduct to prosecutor Milian. Accordingly, and without reaching any decision on the merits of the motion for rehearing, we determined that we would immediately issue a corrected opinion deleting the reference to Knight, no matter what we determined on the merits of the motion. We thereupon sent a copy of the corrected opinion to West Publishing.

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n1 The style and format of the motion suggest that it was not prepared by the Attorney General's office.


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Shortly afterwards, we received a copy of a letter from Mr. Raft directed to West Publishing. The letter requested that West "withhold alteration of any portion of the opinion" until this court had finally disposed of the case. That was [**3] soon followed by the filing in our court of a document styled as "Appellee's Supplemental Motion for Rehearing/Rehearing En Banc" (supplemental motion). This supplemental motion was not signed by anyone from the Attorney General's office. Instead it was signed only by Mr. Raft. We will not here detail the content of this supplemental motion except to say that it specifically objects in great detail to the issuance of our corrected opinion and prays that any changes to the original opinion be made only, if at all, as part of our disposition of the pending motion for rehearing.

We thereupon issued an order to the Attorney General and the assistant state attorney to show cause why the supplemental motion should not be stricken as unauthorized. We called respondents' attention therein to section 16.01(4) ("The Attorney General . . . shall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state.") and section 27.02 ("The state attorney shall appear in the circuit and county courts within his or her judicial circuit [**4] and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as provided in chapters 39, 984, and 985."). §§ 16.01(4) and 27.02, Fla. Stat. (1998). Our order also allowed the defendant to reply to any responses from the Attorney General and State Attorney.

The Attorney General responded through his assistant, Ms. Terenzio. His response stated that the supplemental motion "was filed without any prior notice to this Office." If the Attorney General had no prior notice from or consultation with Assistant State Attorney Raft regarding the supplemental motion, we take that to mean that the Attorney General's office did not specifically authorize the supplemental motion. It is also conspicuous that the Attorney General's response does not adopt any part of the supplemental motion on behalf of his office.

Mr. Raft also timely responded to the order, acknowledging sections 16.01(4) and 27.02 but arguing that, in spite of their clear import, a state attorney has a common law right unaffected by these statutes to represent the State of Florida in criminal appeals. The response cites a number of decisions in [**5] which a state attorney appeared in this court on behalf of the state, n2 [*1111] as well as similar cases from the supreme court and other district courts of appeal. n3

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n2 See State v. Johnston, No. 98-3402 (pending); State v. Scibana, 726 So. 2d 793, 24 Fla. Law W. D 127 (Fla. 4th DCA 1999); State v. Sclafani, 704 So. 2d 128 (Fla. 4th DCA 1997); Sullivan v. State, 674 So. 2d 214 (Fla. 4th DCA 1996); State v. Gullett, 652 So. 2d 1265 (Fla. 4th DCA 1995); State v. Tremblay, 642 So. 2d 64 (Fla. 4th DCA 1994); Wall v. State, 615 So. 2d 822 (Fla. 4th DCA 1993); State v. Zenobia, 614 So. 2d 1139 (Fla. 4th DCA 1993); Turner v. State, 611 So. 2d 12 (Fla. 4th DCA 1992); State v. DiAndrea, 602 So. 2d 1322 (Fla. 4th DCA 1992); State v. Allred, 602 So. 2d 1326 (Fla. 4th DCA 1992); and Dortch v. State, 588 So. 2d 342 (Fla. 4th DCA 1991). We note that Sclafani, Zenobia, Diandra, and Allred involve extraordinary review in ongoing prosecutions. Tremblay and Wall were clearly final appeals, as were Sullivan, Gullett and Dortch which involve final orders on motions seeking postconviction relief. Turner was to review an order after sentencing to appoint special appellate counsel. [**6]



n3 See State v. Ashley, 701 So. 2d 338 (Fla. 1997); Unruh v. State, 669 So. 2d 242 (Fla. 1996); State v. Luster, 596 So. 2d 454 (Fla. 1992); State v. Donaldson, 579 So. 2d 728 (Fla. 1991); State v. Crenshaw, 548 So. 2d 223 (Fla. 1989); and Craft v. State, 517 So. 2d 691 (Fla. 1988). Ashley involved an ongoing prosecution. See also Allen v. State, 703 So. 2d 1162 (Fla. 2d DCA 1997); State v. Taplis, 684 So. 2d 214 (Fla. 5th DCA 1996); State v. Ashley, 670 So. 2d 1087 (Fla. 2d DCA 1996); State v. Guthrie, 666 So. 2d 562 (Fla. 2d DCA 1995); State v. Poole, 665 So. 2d 1065 (Fla. 5th DCA 1995); State v. Campbell, 664 So. 2d 1085 (Fla. 5th DCA 1995); State v. Ingleton, 653 So. 2d 443 (Fla. 5th DCA 1995); State v. Myrick, 636 So. 2d 785 (Fla. 1st DCA 1994); and State v. Smith, 600 So. 2d 574 (Fla. 1st DCA 1992). Taplis, Ashley, Guthrie, Poole, Campbell, Ingleton, Myrick and Smith all involved extraordinary review of pretrial orders in ongoing prosecutions. Only Allen was a final appeal.


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Defendant filed [**7] a reply to Mr. Raft's response to our show cause order. Defendant's reply points out that Assistant Attorney General Rogers is counsel of record for the state in this case; that Mr. Rogers prepared and signed the answer brief; that Mr. Rogers argued the case at oral argument; and that no one from the state attorney's office has been previously involved in this case on behalf of the state -- all thereby bringing to our attention that there has been no motion to substitute anyone for Mr. Rogers. Defendant further states that it was only after the issuance of our opinion in this case that the State Attorney, "apparently unhappy with the performance of the Attorney General's office," filed the motion for rehearing. Defendant further contends that the State Attorney has a "recent practice" of intervening in cases when a decision of this court is "adverse to that office." Defendant closes his reply with a prayer that we strike the supplemental motion as unauthorized.

In none of the cases cited by Mr. Raft has any Florida appellate court purported to decide that a state attorney has a common law right to represent the state in a higher court. Rather, the written opinions in the cases cited [**8] show merely that a state attorney represented one of the parties. We have no way of knowing from these opinions whether the Attorney General specifically approved of the state attorney's pro hac vice representation of the state in the cases cited or, for that matter, whether the court or another party ever objected to it.

We can understand why the Attorney General might prefer to appoint the State Attorney directly involved in a prosecution as a special assistant attorney general for that occasion to represent the state. That would be especially true where, say, one of the parties seeks extraordinary review by common law certiorari of a pretrial order that admits or excludes evidence in a criminal case. Indeed the representation of the state in appellate court extraordinary review of orders entered before judgment in ongoing criminal prosecutions in the circuit court strikes us as probably not inconsistent with a State Attorney's general duties described in section 27.02.

At the same time, section 27.05 requires only that the State Attorney "shall assist the Attorney General in the preparation and presentation of all appeals to the Supreme Court, from the circuit court [**9] of their respective circuits, of all cases, civil or criminal, in which the state is a party." [e.s.] By its plain terms, section 27.05 pertains only to the supreme court and even then it merely requires the local prosecuting official to assist the Attorney General, not to replace that office. Notably, section 27.02 is confined to only the trial courts within the State Attorney's jurisdiction.

The mere fact that the Attorney General may have appointed an assistant [*1112] state attorney as an assistant attorney general for that case, or that he merely acquiesced in the assistant state attorney's appearance without the Attorney General's own participation, does not create any common law right in an assistant state attorney to represent the state in an appellate court without the express authorization of the Attorney General. While Mr. Raft correctly notes that section 2.01 adopts the common law in Florida, he conspicuously fails to add that the same statute also contains a proviso that the common law so adopted is "not inconsistent" with "the acts of the Legislature of this state." § 2.01, Fla. Stat. (1997). Mr. Raft's common law argument is plainly inconsistent with section 16.01(4) and [**10] section 27.02. Section 16.01 unambiguously authorizes only the Attorney General to represent the state in the appellate courts of this state, and section 27.02 plainly limits a State Attorney's authority to represent the state to criminal prosecutions in the county and circuit courts within the judicial circuit in which the State Attorney holds office.

In this case, which is an appeal of a final criminal conviction and sentence, the Attorney General apparently did approve the participation of Mr. Raft to assist his office in the preparation of the motion for rehearing. But the response of the Attorney General to our show cause order also shows that he had no prior notice of the supplemental motion and does not suggest either expressly or impliedly that his office approved it. Therefore, because the supplemental motion for rehearing prepared and filed solely by Mr. Raft was not approved by the Attorney General, we deem it unauthorized and hereby grant defendant's motion to strike it. n4

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n4 Although we have struck the supplemental motion for rehearing, we do wish to stress that our opinions are subject to correction by us at any time before we have decided pending motions for rehearing. We frequently correct an opinion promptly when someone calls our attention to a factual, grammatical, orthographic or other kind of error, inaccuracy or omission not necessarily affecting any substantive decision on our part. The lawyers involved need draw no dire conclusions from our so doing except that we desire to remove such errors from an opinion no matter what else we might do. And, we trust, we need not bother to explain why it is not for attorneys representing the parties in a case in our court to attempt to tamper with the publication of our decisions or to attempt to countermand our directions to West Publishing.


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Before we pass on from the subject of the supplemental motion, however, we feel compelled to comment on something raised by defendant's reply. Defendant made the point that the state had been represented throughout this case by Mr. Rogers and that after our opinion was released Mr. Rogers was apparently no longer representing the state. That observation caused us to recall that during oral argument, in response to questions from the panel on this case, Mr. Rogers candidly conceded that (as argued by defendant in his brief) Assistant State Attorney Milian had been the subject of previous holdings of this court involving prosecutorial misconduct. With his admirable professional candor, Mr. Rogers had stated at oral argument that he would make no attempt to justify the conduct of assistant state attorney Milian in the cases cited by defendant in his initial brief.

We think it very important to reaffirm that it is entirely appropriate, even preferable, for an appellee's lawyer to accept factual assertions in the statement of facts in the initial brief and to concede facts or law at oral argument. Good lawyers do not waste time in petty quarrels over tertiary details, so long as the [**12] ultimate facts and law are accurately stated. In this regard, Mr. Rogers is one of the better lawyers frequently appearing in our court. His briefs for the state usually concentrate on the important matters for our consideration and do not have us counting dancing angels on small promontories. We recognize in his advocacy a lawyer on whom we can usually rely to get it right and do it ethically. We commend [*1113] Mr. Rogers for his professionalism in this case.

We therefore deem it equally important to emphasize that the lawyers from the Attorney General's office who argue in this or any other appellate court in this state simply must have the authority in the heat of oral argument to concede weaknesses in the state's case. To deprive them of that authority is to severely weaken their effectiveness as advocates. Moreover the failure of a lawyer to acknowledge clearly contrary facts or law is decidedly unethical and unprofessional.

The legal duty to prosecute crime does not require an unbending refusal to recognize the obvious. Even when it loses a case, the State of Florida triumphs when justice is rightly done. Thus it should not make a State Attorney who initiates a particular criminal [**13] prosecution unhappy to learn that the Attorney General has, through one of his assistants in the exercise of professional judgment, conceded some matter during an appeal in order that justice be done. See Oglesby v. State, 156 Fla. 481, 23 So. 2d 558 (1945) (HN1state attorney has duty to assure defendant fair trial because state attorney is semi-judicial officer).

Turning to the original motion for rehearing, we first note that it is constructed much like a brief, even to the extent of having a "summary of argument" near the beginning. Then, in addition to presenting a summary of factual errors, the motion proceeds to engage in extensive argument challenging the correctness of our decision in this case. The motion seems to have as its primary purpose an intent to demonstrate a party's profound disagreement with the merits of our decision.

At this late date, it should not require another opinion restating that this is not the function of a motion for rehearing.

"Certainly HN2it is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral [**14] argument and necessarily considered by the court, or to request the court to change its mind as to a matter which has already received the careful attention of the judges, or to further delay the termination of litigation."

State v. Green, 105 So. 2d 817, 818-819 (Fla. 1st DCA 1958), cert. discharged, 112 So. 2d 571 (Fla. 1959); see also Fla.R.App.P. 9.330(a); Jacobs v. Wainwright, 450 So. 2d 200, 201 (Fla.), cert. denied, 469 U.S. 1062, 83 L. Ed. 2d 433, 105 S. Ct. 545 (1984) ("HN3A motion for rehearing shall not reargue the merits of the Court's order."); Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100 (Fla 4th DCA 1993); Seslow v. Seslow, 625 So. 2d 1248 (Fla. 4th DCA 1993); Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 2nd DCA 1983).

More recently, in Goter v. Brown, 682 So. 2d 155 (Fla. 4th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997), we said:

"We had thought we made quite clear 3 years ago . . . that we will not suffer a flouting of [the requirement that motions for rehearing shall abstain from argument]. HN4Motions for rehearing are strictly limited to calling our attention -- without argument -- to something we have [**15] obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only -- i.e. merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so." [e.o.]

682 So. 2d at 158. The motion in question is a model of the kind covered by our reproach in Goter.

Although the state's motion for rehearing is thus improper and would normally elicit no comment from us other than to deny it, we nevertheless address the [*1114] state's contentions of "errors and additional facts." It is important, however, to remember the context of the factual assertions in our original opinion. Ordinarily we would begin and end review with the observation that we have accepted all contested facts in favor of the prevailing party. But in this instance our account of the factual background was part of an analysis whether the improper argument of the prosecutor was prejudicial. n5 Thus our opinion sought to present the evidence in favor of the losing party in order to assess whether the argument could be deemed harmless.

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n5 Since our original decision the supreme court has released its opinion in Ruiz v. State, 1999 Fla. LEXIS 507, 1999 WL 176049 (Fla. April 1, 1999). Like this case, Ruiz involved a reversal based on prosecutorial misconduct. Many of the instances of misconduct by the prosecutor in Ruiz were not preserved by a timely objection. Yet the supreme court also relied on the unpreserved acts for its reversal, explaining:

"The State argues that because defense counsel failed to object to several of the prosecutor's . . . statements he is barred from raising this issue on appeal. We disagree. When the properly preserved comments are combined with additional acts of prosecutorial overreaching set forth below, we find that the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted." [e.s.]

1999 Fla. LEXIS 507, *15-16.

In our original opinion we intentionally omitted reciting several instances of unpreserved prosecutorial misconduct in this case, among them the following:

(1) Prosecutor Milian told the jury that the police and prosecutor have "identified" defendant as the perpetrator of the crime;

(2) Prosecutor Milian described defendant as a "trusted lieutenant" in a criminal enterprise;

(3) Prosecutor Milian told jurors that the prosecutor makes absolutely sure his eyewitnesses can identify the perpetrator of the charged crime before calling that witness to the stand;

(4) Prosecutor Milian advised the jury that "if anything in this case, enough people have not been arrested;" and

(5) Prosecutor Milian admonished the jurors that an acquittal would "stick in [his] side like a thorn."

These instances of prosecutorial misconduct are indistinguishable from the misconduct condemned by the supreme court in Ruiz and certainly support -- even more so -- our original decision to reverse.


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The motion first quarrels with our characterization of the street lighting as "low level." We note that this was the term used by defendant in the statement of facts in the initial brief, and the answer brief "accepts Appellant's statement of the case and facts," subject to an addition not relevant on this point. n6 Thus the briefs are alone sufficient to support our statement, for there was no express rejection of defendant's characterization as "low level" in describing the lighting. Unless a party points out a disagreement with a factual statement, we are entitled to accept the statement of facts in the brief as accurately portraying the necessary factual background for the legal issues. This is, of course, especially so when the party has accepted the statement of facts.

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n6 The state added that the eyewitness "got a good look at appellant's face for about 15 seconds. . .," and that the eyewitness actually identified defendant on three different occasions: once from a photo array shortly after the crime, once from a live line-up, and last during the trial. The answer brief also reminded us that defendant presented an alibi defense.


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Next the state challenges our statement of 15 seconds as the duration of the time in which the eyewitness saw the perpetrator. Yet as conceded by the state in its answer brief the witness specifically testified that he saw the face of the man for no longer than 15 seconds.

The state next asserts that we were incorrect in saying that the eyewitness first identified defendant from a photo array and only after that in a live line-up. Here again, the initial brief, which was accepted by the state, asserts that the witness "selected [defendant's] photograph from a photo-spread . . . ." The brief then says that "[f]ollowing the photo-spread identification and prior to trial [the witness] selected [defendant] from a live line-up [*1115] . . . ." [e.s.] We necessarily add that whether the witness picked the photo or the live person first in the identification sequence is of no importance to our decision that the prosecutorial misconduct was prejudicial.

The fourth factual assertion challenged by the state is in reference to whether the lawyer-witness called by the defense actually objected to the line-up as unreasonably suggestive. Defendant points out in his response to the motion [**18] for rehearing that Mr. Kulik "unequivocally" testified that he objected to the array of persons chosen. The transcript shows that Mr. Kulik testified as follows:

"I told him basically that he [defendant] was the only person with a full beard and that kind of hair. I didn't think it was a good lineup. I thought it might be suggestive and I thought it might be a misidentification, and he proceeded anyway."

The fact that there was contrary evidence by police officers is beside the point of our reference to Mr. Kulik's testimony, which was presented, again, as part of harmless error analysis.

In the final contentions of factual error, the motion quarrels with whether the evidence of the defense alibi witnesses was sufficient to establish an alibi (we never said it was, merely that there was alibi evidence); that we were incorrect in saying there were internal inconsistencies in the witness's identification (there were, but we did not suggest that any inconsistencies rendered the identification legally unacceptable, merely that they existed); and that prosecutor Milian has not been repeatedly rebuked (the reader can read the cases cited in our corrected opinion). We stress once [**19] again that these facts were concerned with harmless error.

In the end we conclude that the state's motion for rehearing misses the point of our opinion. None of the state's contentions, even if they had turned out to be well taken, are sufficient to cause any judge on this panel to believe that the result of our decision on the merits should be changed.

REHEARING DENIED.

GUNTHER and TAYLOR, JJ., concur.

Anonymous said...

JOHNNY C. BARNES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 98-0299

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

743 So. 2d 1105; 1999 Fla. App. LEXIS 1478; 24 Fla. L. Weekly D 458


February 17, 1999, Opinion Filed

SUBSEQUENT HISTORY: [**1]

Opinion on Rehearing of May 26, 1999, Reported at: 743 So. 2d 1105 at 1109.

Released for Publication May 26, 1999.

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William P. Dimitrouleas, Judge; L.T. Case No. 97-11663 CF.

DISPOSITION: REVERSED FOR NEW TRIAL.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant individual sought review of an order of the Circuit Court for the 17th Judicial Circuit, Broward County (Florida), that convicted him, upon a jury verdict, of arson after plaintiff prosecution made an improper argument in closing.

OVERVIEW: Defendant individual was identified as one of two men involved in an arson fire. At a lineup, defendant's counsel objected that the array was unreasonably suggestive. During trial, the attorney who had represented defendant at the line-up was called as a defense witness to establish that the identification was tainted. In closing, defendant's trial counsel argued the witness's identification was compromised by the testimony of the first defense counsel. In rebuttal, plaintiff prosecution stated that the attorney had testified as a hired gun. Defendant's objection was sustained, and the trial court instructed the jury to ignore the remark. Defendant was subsequently convicted. On appeal, he argued that the conviction was subject to reversal because the highly improper argument of the prosecutor affected the jury in its deliberations in spite of a sustained objection and the curative instruction. The court agreed, reversed the conviction, and remanded the case. The court held that the prosecutorial misconduct went to the very core of the conviction and that the effect was to deny defendant a fair trial.

OUTCOME: The court reversed defendant's conviction for arson and remanded the case for a new trial. The court found that the highly improper argument of plaintiff prosecution regarding defendant's former counsel affected the jury in its deliberations in spite of a sustained objection and the curative instruction.

CORE TERMS: prosecutor, curative instruction, defense counsel, new trial, impropriety, closing argument, identification, prosecutorial misconduct, improper conduct, criminal case, fair trial, prosecuting, repeated, rebuke, improper argument, stricken, disciplinary, persisted, advocacy, mistrial, observe, tactic, eyewitness identification, verdict of guilty, motion to strike, admonition, eyewitness, condemned, objected, curative

LexisNexis(R) Headnotes Hide Headnotes


Criminal Law & Procedure > Appeals > Prosecutorial Misconduct

HN1 When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state's counsel in the prosecution of a criminal case, or where a prosecuting attorney's argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments. More Like This Headnote


Criminal Law & Procedure > Appeals > Prosecutorial Misconduct

HN2 Where prosecutorial misconduct is properly raised on objection, the judge should sustain the objection, give any curative instruction that may be proper and admonish the prosecutor, and call to his attention his professional duty and standards of behavior. More Like This Headnote


Criminal Law & Procedure > Appeals > Reversible Error

HN3 For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process. When the error concerns closing argument in a criminal case, to be fundamental it must be such as utterly to destroy the defendant's most important right; the right to the essential fairness of his or her criminal trial. Fundamental error in a criminal case is error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. More Like This Headnote


COUNSEL: Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: FARMER, J., GUNTHER and TAYLOR, JJ., concur.

OPINIONBY: FARMER

OPINION: [*1106]

FARMER, J.

At 2:00 in the morning on his way home after working a full shift as a nurse, an eyewitness saw two men illuminated by the low level glow of a nearby streetlight running away from a burning building. He saw them for no more than 15 seconds. The witness later identified a photograph of defendant as one of the men and, still later, identified him again from a lineup. Defendant's lawyer at the lineup objected to the array of persons chosen as unreasonably suggestive because none of them had the same general features as defendant. That lawyer, who had by then withdrawn as defendant's counsel, was called at trial as a defense witness to establish [**2] that the identification was tainted. Four other defense witnesses testified in support of an alibi, while still another witness testified to a conversation with a different person who admitted setting the fire.

During closing argument defense counsel argued that there was no objective evidence linking defendant to the crime and that a verdict of guilty would have to rest on the eyewitness identification. He argued that the identification was substantially compromised by the testimony of the first defense counsel. In rebuttal the state's prosecutor, Alberto Milian, responded by characterizing this testimony as "the mercenary actions of . . . a hired gun, [e.s.] hired by the -- ." At that point the following occurred:

"DEFENSE: Objection to that.

COURT: Sustained.

DEFENSE: Ask that it be stricken.

COURT: Ignore the last comment.

STATE: -- who was hired to go over there and defend this guy."

On appeal defendant argues that his conviction must be reversed because this highly improper argument of the prosecutor affected the jury in its deliberations in spite of a sustained objection and the curative instruction. We agree and reverse for a new trial.

The impropriety of [**3] a prosecutor disparaging or denigrating the person of defense counsel is now well established. See Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984); Cochran v. State, 280 So. 2d 42 (Fla. 1st DCA 1973); Simpson v. State, 352 So. 2d 125 (Fla. 1st DCA 1977); Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA [*1107] 1981); Melton v. State, 402 So. 2d 30 (Fla. 1st DCA 1981); Westley v. State, 416 So. 2d 18 (Fla. 1st DCA 1982); McGee v. State, 435 So. 2d 854 (Fla. 1st DCA 1983). This court has joined the many courts condemning the tactic. See Cochran v. State, 711 So. 2d 1159 (Fla. 4th DCA 1998); Landry v. State, 620 So. 2d 1099, 1102 (Fla. 4th DCA 1993); Ryan v. State, 457 So. 2d 1084, 1089 (Fla. 4th DCA 1984); Thompson v. State, 318 So. 2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 465 (Fla. 1976); see also Valdez v. State, 613 So. 2d 916 (Fla. 4th DCA 1993). As we said in Ryan, "resorting to personal attacks on the defense counsel is an improper trial tactic which can poison the minds of the jury." 457 So. 2d at 1089(citation omitted).

The record clearly demonstrates the absence of objective evidence -- e.g., fingerprints, clothing, [**4] footprints, bodily fluids, etc. -- definitively tying defendant to the crime. Moreover it shows that the only other evidence incriminating defendant was circumstantial, that he was employed by a competitor of the business whose building was burnt by the arson. As we have already indicated, there was substantial evidence to create a reasonable doubt, consisting of an alibi and a hearsay admission of guilt by a third party. And if that were not enough, there were internal inconsistencies in the eyewitness's identification, primarily arising from differences between defendant's physical appearance and the details first given by the witness before any identification. It thus appears to us from a fastidious review of the record that the eyewitness identification was the heart of the state's case.

The testimony of original defense counsel therefore assumed great importance to the jury's resolution of the case. Hence, while we might have been able to conclude with some confidence in a case with substantial corroborating evidence of guilt that the error in closing argument was harmless, see e.g. Goddard v. State, 143 Fla. 28, 196 So. 596 (1940); and Lewis v. State, 711 So. 2d 205 [**5] (Fla. 3d DCA 1998), here we are unable to do so. The state's case is barely enough to be prima facie, and it is countered by strong defense evidence that another person might be guilty.

Two additional problems arise from the trial judge's response to defendant's motion to strike the improper argument after the objection was sustained -- namely, the trial judge's statement to "ignore the last comment." As a curative instruction the judge's response is quite ambiguous. What precisely is the "last comment" to which the judge referred? Was it the words immediately preceding the judge's instruction, i.e., "ask that it be stricken"? When a judge grants a motion to strike in this circumstance it is important that the fact of granting the motion be made unmistakably clear to the jury. It is also very important that the precise comment to be stricken be identified in a way that will leave no room for doubt about what the jury must ignore.

Equally troublesome is the vaporous nature of the "curative" instruction. As our supreme court said in Deas v. State, 119 Fla. 839, 161 So. 729, 731 (1935):

HN1"When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety [**6] and fairness which should characterize the conduct of a state's counsel in the prosecution of a criminal case, or where a prosecuting attorney's argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments." [e.s.]

161 So. at 731; see also Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985) ("We commend to trial judges the vigilant exercise [*1108] of their responsibility to insure a fair trial. HN2Where, as here, prosecutorial misconduct is properly raised on objection, the judge should sustain the objection, give any curative instruction that may be proper and admonish the prosecutor and call to his attention his professional duty and standards of behavior."). The "curative" instruction in this case hardly rises to these standards. [**7]

The seriousness of the impropriety committed by the prosecutor demanded a rebuke in the presence of the jury, coupled with a more forceful admonition that this kind of argument is highly improper and should not be considered in any way by the jury. Instead the court diluted its "cure" to the weakest possible, thereby implying that the violation was insubstantial and tenuous and the objection merely ritualistic. For a curative instruction conceivably to erase the palpable prejudice to the defendant in this situation, the court should have condemned the comment in the clearest and most unmistakable terms. In these circumstances it might even have been proper for the court to question the jurors to determine whether the effects of such improper closing argument could be set aside. The curative instruction in this case being so inadequate to its purpose, we are therefore unable to indulge the assumption that it had much effect.

Although defendant did not specifically move for a mistrial after the objection was sustained, he argues on appeal that the argument fundamentally affected the outcome of the trial. As the supreme court has stated: "HN3for an error to be so fundamental that it [**8] can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process." State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)(citations omitted). When the error concerns closing argument in a criminal case, to be fundamental it must be "such as utterly to destroy the defendant's most important right under our system, the right to the 'essential fairness of [his] criminal trial.'" Cochran v. State, 711 So. 2d 1159, 1163 (Fla. 4th DCA 1998)(citations omitted); see also Rhodes v. State, 547 So. 2d 1201, 1206 (Fla. 1989), cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547, 115 S. Ct. 642 (1994); Knight v. State, 672 So. 2d 590, 591 (Fla. 4th DCA 1996); Tuff v. State, 509 So. 2d 953, 955-56 (Fla. 4th DCA 1987); Peterson v. State, 376 So. 2d 1230, 1234 (Fla. 4th DCA 1979), cert. denied, 386 So. 2d 642 (Fla. 1980); and Thompson v. State, 318 So. 2d 549, 551 (Fla. 4th DCA 1975). Fundamental error in a criminal case is error that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." [**9] Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996) (quoting from State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991), cert. denied, 118 S. Ct. 103 (1997)).

It is true that this prosecutorial excess is but a single comment, and that we are implicitly rejecting defendant's argument that other comments of this prosecutor are also improper enough to require a new trial. But as another appellate court in this state said in ordering a new trial under the identical circumstances:

"There is nothing in the record from which we can tell whether the offensive remark, objected to by counsel, recognized by the court as objectionable in sustaining the objection and by the attorney general in argument here, contributed to the conviction. As Mr. Justice Thornal said, in Pait v. State, 112 So. 2d 380 at page 385 (Fla.1959): 'We think that in a case of this kind the only safe rule appears to be that unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the judgment must be reversed.' That was a capital case, and this is not, but the accused has a fundamental right to a fair trial free from argument condemned, [**10] according to Mr. Justice Terrell, '. . . so many times . . . that the law [*1109] against it would seem to be so commonplace that any layman would be familiar with and observe it.'"

Chavez v. State, 215 So. 2d 750, 750-51 (Fla. 2d DCA 1968)(citations omitted); see also Stewart v. State, 51 So. 2d 494 (Fla. 1951). Because of the closeness of the evidence and the fact that the improper argument directly concerned the principal evidence of guilt, we conclude that the prosecutorial misconduct goes to the very core of the conviction, that it operated to deny defendant a fair trial and is the equivalent of a denial of due process. Defendant has therefore carried his burden to make prejudicial and fundamental error clearly appear. See § 924.051, Fla. Stat. (1997).

With the renewed attention of the bench and bar to the subject of attorney professionalism, we feel constrained to observe that this is not the first case in which the conduct of this particular prosecutor has required a new trial. See Cochran v. State, 711 So. 2d 1159 (Fla. 4th DCA 1998); Knight v. State, 672 So. 2d 590 (Fla. 4th DCA 1996); Klepak v. State, 622 So. 2d 19 (Fla. 4th DCA 1993); and Landry [**11] v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993). It is evident from these cases that he has persisted in this improper conduct for more than five years in spite of repeated disapproval of it by our court. Apparently this prosecutor has not learned from our previous comments that his improprieties have brought repeated discredit to the office of the State Attorney in the Seventeenth Judicial Circuit by his failure to comply with the canons of advocacy.

In Bertolotti v. State, 476 So. 2d 130 (Fla. 1985), the court said of another prosecutor who persisted in such improper conduct that:

"This Court considers this sort of prosecutorial misconduct, in the face of repeated admonitions against such overreaching, to be grounds for appropriate disciplinary proceedings. It ill becomes those who represent the state in the application of its lawful penalties to themselves ignore the precepts of their profession and their office. Nor may we encourage them to believe that so long as their misconduct can be characterized as harmless error,' it will be without repercussion. However, it is appropriate that individual professional misconduct not be punished at the citizens' expense, by reversal [**12] and mistrial, but at the attorney's expense, by professional sanction."

476 So. 2d at 133-134 [e.o.]. More recently in Izquierdo v. State, 1998 Fla. App. LEXIS 14663, 23 Fla. Law W. D 2643, 1998 WL 821739 (Fla. 3d DCA Nov. 18, 1998), Chief Judge Schwartz wrote in an identical context that:

"This is the third time we have been forced to deal with his indulgence in what is often euphemistically called overzealous advocacy,' but is really just unprofessional and unethical behavior. See Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998); State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995). We therefore now fulfill the promise of Lewis, 711 So. 2d at 208 n.1, and refer him to the Florida Bar."

With the fifth rebuke of prosecutor Milian by this court, we hope that the disciplinary organs of The Florida Bar will finally bring their compelling powers to bear on this lawyer who either refuses or is unable to limit his trial tactics to that which are ethical and proper.

REVERSED FOR NEW TRIAL.

GUNTHER and TAYLOR, JJ., concur.

Anonymous said...

MALLA LANDRY, Appellant, v. STATE OF FLORIDA, Appellee.

CASE No. 92-1066

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

620 So. 2d 1099; 1993 Fla. App. LEXIS 6911; 18 Fla. L. Weekly D 1513


June 30, 1993, Filed

SUBSEQUENT HISTORY: [**1] Released for Publication July 16, 1993.

PRIOR HISTORY: Appeal from the Circuit Court for Broward County; Howard M. Zeidwig, Judge. L.T. CASE NO. 91-4292 CF.

DISPOSITION: We therefore reverse appellant's conviction and sentence and remand for a new trial.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant challenged a decision from the Circuit Court for Broward County (Florida) convicting her of three counts of aggravated assault on a law enforcement officer with a deadly weapon.

OVERVIEW: Appellant was convicted of aggravated assault on police officers stemming from an incident in which she allegedly tried to run them down with her car. She appealed, arguing that the cumulative effect of the prosecutor's improper comments in closing argument required reversal. Because the argument was peppered with improper argument accompanied by objection, which objections were erroneously overruled, the court agreed and reversed. Because the officers and appellant's witness gave very different eyewitness accounts, it was not harmless error for prosecutor to boost the officers' testimony without evidence that their records were unblemished, as claimed in closing argument, or to infer that appellant's witness presented false testimony. It was egregious error for the prosecutor to comment on excluded evidence or to tell the jury that the case was appealable. The court also held it was error to refuse to allow appellant to cross-examine one of the officers about a past investigation of excessive force as it was relevant to the case. The court condemned an exchange of name-calling between the attorneys.

OUTCOME: The court reversed the conviction and sentence because of improper prosecutorial argument, the cumulative effect of which was to deprive appellant of a fair trial, and because appellant was wrongfully denied the opportunity to cross-examine a law enforcement officer about his use of excessive force in another case.

CORE TERMS: prosecutor, excessive force, police officers, boarder, drove, unblemished, closing argument, courtroom, rebuttal, truck, defense argument, cross-examination, match, bias, law enforcement officer, prosecutorial argument, outstanding warrant, cumulative effect, defense attorney, name calling, fair trial, voir dire, cross-examine, credibility, screaming, objected, sentence, backyard, mistrial, driveway

LexisNexis(R) Headnotes Hide Headnotes


Criminal Law & Procedure > Trials > Closing Arguments > Reference to Evidence Not Admitted

HN1 Where the claim regarding the unblemished records was not adequately supported by the record, comment citing officer's "unblemished record" constitutes impermissible bolstering of the officers' testimony. More Like This Headnote | Shepardize: Restrict By Headnote


Criminal Law & Procedure > Trials > Closing Arguments > Inflammatory Statements

HN2 Comment by prosecutor that the defense "conjured up" testimony, or in other words was presenting false testimony, is highly improper. More Like This Headnote | Shepardize: Restrict By Headnote


Criminal Law & Procedure > Trials > Closing Arguments > Reference to Evidence Not Admitted

HN3 It is fundamental error for a prosecutor to argue in closing that there was other evidence which could have been introduced but wasn't. More Like This Headnote


Criminal Law & Procedure > Trials > Examination of Witnesses > Cross-Examination

HN4 The defendant is allowed wide latitude in cross-examination to show bias on the part of a witness. More Like This Headnote


Evidence > Criminal Evidence > Impeachment Evidence


Criminal Law & Procedure > Witnesses > Impeachment

HN5 Where there is an issue of whether excessive force was used by the officer, prior investigations into this officer's use of excessive force in other cases are relevant. More Like This Headnote | Shepardize: Restrict By Headnote


COUNSEL: Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: ANSTEAD, HERSEY and WARNER, JJ., concur.

OPINIONBY: PER CURIAM

OPINION:

[*1100] PER CURIAM.

In a trial marked by unseemly conduct by attorneys, appellant was convicted of three counts of aggravated assault on a law enforcement officer with a deadly weapon. We reverse the conviction and sentence because of improper prosecutorial argument, the cumulative effect of which was to deprive appellant of a fair trial. We also hold that the trial court erred in refusing to allow the appellant to cross-examine a law enforcement officer about his investigation by the FBI for using excessive force in another case. And, though not raised as a point on appeal, we find it necessary to comment disapprovingly of the [**2] conduct of counsel in this case.

According to the testimony of the three police officers involved in this incident, they responded to a report of domestic disturbance at appellant's residence. They testified that appellant called in the report and additionally advised them that there was an outstanding warrant for her husband's arrest. When the officers arrived at the home, they found appellant's husband, but not appellant. The officers checked to see if there was an outstanding warrant on the husband. As they were speaking to him in the backyard, appellant drove up the driveway at a high rate of speed, then veered off directly toward the group. The men jumped out of the way to avoid being hit. They testified that she was screaming obscenities at them, claiming that they had killed her son. Appellant then drove away, but shortly thereafter returned and drove her car into the outside of the garage. The officer extracted her from the vehicle forcibly, because she was grasping the steering wheel, kicking and screaming. The officers denied using excessive force.

A boarder at appellant's home told a very different version of the event. He testified that he was present during the entire [**3] incident and that appellant drove up at a normal speed to the group of officers around [*1101] her husband. The husband told her that he was being arrested which agitated her because she told them that the charges against him had been dropped. The officer asked her to get out of the truck. She refused and made a U-turn in the backyard to begin to leave. Again, the officers requested that she get out of the truck. There was some name calling, and the officer walked away laughing, taking her husband to the front of the house.

Appellant then left but came back five or ten minutes later. She whipped into the driveway, hit her brakes, and slid into the garage. The officers then took appellant by the arms and dragged her out of the truck, five or six feet along the ground. The boarder saw bruises on her arm when she returned from jail. The jury convicted her on all charges.

Appellant argues that the cumulative effect of the prosecutor's improper comments in closing argument requires reversal. Because the argument is peppered with improper argument properly objected to, which objections were erroneously overruled, we agree and reverse.

The crux of the appellant's theory of defense was that the police [**4] officers were attempting to cover up their excessive use of force on appellant by fabricating the story regarding appellant's attempts to assault them with her vehicle. In anticipation of this defense argument, the prosecutor queried as to why "They [the police officers] would risk all of their years, their unblemished records [to lie in this case]." The defense objected that there was no evidence in the record which would support the statement that the officer's records were unblemished. The objection was overruled. Several other times during his closing argument the prosecutor referred to the "unblemished record" of the officers. While there was evidence that there was no internal investigation as a result of this arrest, there was no testimony regarding the overall record of these officers, other than Officer Pardon's statement that his personnel file contained only positive remarks and that he had been cleared of any wrongdoing in one case by an FBI investigation. Thus, appellant was correct that HN1the claim regarding the unblemished records was not adequately supported by the record and constituted impermissible bolstering of the officers' testimony. E.g., Blackburn v. State, 447 So. 2d 424 (Fla. 5th DCA 1984); [**5] Richmond v. State, 387 So. 2d 493 (Fla. 5th DCA 1980); Francis v. State, 384 So. 2d 967 (Fla. 3d DCA 1980). Because this case came down to a swearing match between the officers and appellant's witness, the error cannot be considered harmless.

The prosecutor also tried to denigrate appellant's defense. In his rebuttal closing argument, he made the following argument to the jury:
And I think that says a great deal about the defense's argument when they're not arguing to what was said by the witnesses in this case. But they're going back to jury selection and talking about Mr. Cooper, who's not even sitting as a member of this panel.

And I guess it's part of that little saying when you don't have the facts you argue the law, or when you don't have the law, you argue the facts. And when you don't have either, you just sort of try to conjure up, sign (sic) your fists and say no one is believable.


This comment was made in connection with the prosecutor's review of the boarder's testimony. A fair reading of the HN2comment would be that the defense "conjured up" the boarder, or in other words was presenting false testimony. [**6] Such argument is highly improper. See United States v. Spain, 536 F. 2d 170 (7th Cir. 1976); Houston v. Estelle, 569 F. 2d 372 (5th Cir. 1978).

On rebuttal, after defense argument, the prosecutor stated "The point is [appellant] did come at him with that pickup truck for her own motives and reasons, some evidence I can't comment upon . . . ." The court denied the defense objection, and the prosecutor went on to say "the judge allows some evidence in and likewise he allows some evidence - keeps some evidence out. He allowed this piece of evidence in, but don't . . . ." He was cut off by the defense's motion for a mistrial on the basis [*1102] of the prosecutor's suggestion that there was other evidence in the case that the jury was not made aware of. The trial court denied the motion.

This is clear error, made more egregious by the fact that just prior to starting rebuttal the prosecutor had asked the court to allow him to comment on the excluded evidence which the court denied. In Thompson v. State, 318 So. 2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 465 (Fla. 1976), [**7] this court held that HN3it was fundamental error for a prosecutor to argue in closing that there was other evidence which could have been introduced but wasn't. We think that holding is dispositive. The state's brief does not attempt to justify this argument, nor do we think it could. There are few errors which could fundamentally affect a jury verdict in a criminal trial more than a prosecutorial argument tantamount to "trust me, there's more evidence here but I can't get it in because the judge won't let me."

Finally, the prosecutor made the following remarks to the jury regarding its function:
You took the oath whether you like the law or not. And, you know, when you're asked about your decision here being final, our system is huge. You have appellate courts, you have the supreme court --.


Appellant moved for a mistrial on the grounds that the argument violated a prior ruling of the court regarding the availability of appellate remedies. The trial court denied the motion. This subject first came up when the defense attorney told the jury that their decision was final. At that time the trial court told the prosecutor that he could tell the jury that cases are appealable if [**8] there was a misrepresentation on the law or a question of law but not on the facts. Later, the court told the prosecution to stay away from the subject. Nevertheless, the prosecutor plowed forward with the above comment.

Appellant suggests that this comment left the jury with the impression that its role was advisory, because it would be reviewed by appellate courts. We agree with appellant's characterization. The jury may have been more inclined to convict, thinking that their decision could be corrected on appeal. Combined with the other errors in this case tried on credibility issues, this too was reversible improper comment.

Appellant raises other comments which she claims were improper. The only other one which merits mention is the prosecutor's references in closing to his military service in the Persian Gulf. While it is not independently reversible error, we think in the context of this case it was an improper attempt to curry favor with the jury, particularly where it is entirely irrelevant to any issue being tried or argued.

We also hold that it was error for the trial court to refuse to allow appellant to cross-examine one of the police officers about a past investigation [**9] by the FBI where he had been suspected of using excessive force. Appellant argues that evidence of the prior investigation was relevant to the officer's credibility to show his bias and motive for testifying, particularly where appellant was claiming that this officer used excessive force in removing her from her vehicle. Certainly, HN4the defendant is allowed wide latitude in cross-examination to show bias on the part of a witness. See Breedlove v. State, 580 So. 2d 605 (Fla. 1991). HN5Where there is an issue of whether or not excessive force was used by the officer in this case, prior investigations into this officer's use of excessive force in other cases are relevant. Breedlove at 609, citing A. McD. v. State, 422 So. 2d 336, 338 (Fla. 3d DCA 1982). Thus, it was error to restrict cross-examination of the officer on this matter.

In addition, we are compelled to address conduct by the attorneys in this case which appears to us to have exceeded the bounds of acceptable behavior by members of the bar in this state in a proceeding before a court. Apparently, the prosecutor, Mr. Alberto Milian, and public defender, Mr. Maury [**10] Halperin did not get along. The basis for the animosity is not entirely clear in the record. However, the attorneys engaged in several shouting matches before the judge.

[*1103] We will not get into the length and breadth of the confrontations but they appeared to begin during voir dire and lasted until the end of the trial. During that time Mr. Milian called the defense attorneys "maggots" and "poor excuses for human beings" and defense attorney Halperin implied that the prosecutor was a "scum bag". At one point the court and the attorneys were arguing which term was worse.

To argue whether it is worse to be called a "maggot" or a "scum bag" in open court misses the point that this kind of behavior on both sides is entirely unacceptable and should not be tolerated from lawyers who have taken an oath of office and are required to abide by the Rules of Professional Conduct. See Peterson v. State, 376 So. 2d 1230, 1233 (Fla. 4th DCA 1979). The oath itself states:

"I do solemnly swear:

"I will support the Constitution of the United States and the Constitution of the State of Florida.

"I will maintain the respect due to courts of justice and judicial officers," [**11] ...

"I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor...."

"I will abstain from all offensive personality...."

While we often refer to trials and court proceedings in terms which reflect that the litigants are engaged in combat, the courtroom remains a place where civilized society resolves disputes without physical altercation. To accomplish that purpose it must remain a civilized setting. It is the duty of each attorney and each judge to maintain the decorum of the courtroom. Name calling is, as the judge below noted, a playground prank. It is unworthy of officers of the court who throughout three years of law school ought to have learned something about acceptable courtroom conduct. We express our emphatic disapproval with the hope it will prevent the spread of such conduct which demeans the trial court and may very well prevent either party from receiving a fair trial. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 We would note that when the unpleasant exchanges began on voir dire one of the jurors said that the attorneys' antics were getting better than the trial. She characterized it as "The Young and the Restless". Attorneys should not be the focus of the trial. Fortunately, the name calling in this case occurred while the jury was absent.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**12]

We therefore reverse appellant's conviction and sentence and remand for a new trial.

ANSTEAD, HERSEY and WARNER, JJ., concur.

Anonymous said...

JAMES KLEPAK, Appellant, v. STATE OF FLORIDA, Appellee.

CASE No. 92-1221.

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

622 So. 2d 19; 1993 Fla. App. LEXIS 6914; 18 Fla. L. Weekly D 1515


June 30, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing Denied August 27, 1993. Released for Publication August 27, 1993.

PRIOR HISTORY: Appeal from the Circuit Court for Broward County; Howard M. Zeidwig, Judge. L.T. CASE NO. 90-13238 CF.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant sought review of the judgment from the Circuit Court for Broward County (Florida), which found appellant guilty of lesser included misdemeanors, and not the felonies with which he was charged. Appellant alleged that the statements made by the assistant state attorney improperly intimidated the court into giving appellant a stiffer sentence than the conviction and presentence investigation warranted.

OVERVIEW: Appellant was convicted for lesser-included misdemeanors and not the felonies with which he was charged. After the jury was discharged, the assistant state attorney argued that appellant should have been remanded to the custody of the sheriff for a presentence investigation. When the trial court expressed its disagreement, the state attorney argued to the court that the jury was made up of buffoons and lobotomized zombies, and suggested that the verdict was returned because the jury was eating pizza or salads instead of deliberating. Although the court expressed strong disapproval of the remarks made by appellee, it affirmed the conviction because the remarks had not effected the jury's verdict.

OUTCOME: The court affirmed appellant's conviction because the statements made by the assistant state attorney after the verdict was returned, although strongly disapproved of by the court, had no effect on the jury's verdict.

CORE TERMS: juror, isolated, lobotomized, presentence, prosecuting, misdemeanors, buffoons, zombies

LexisNexis(R) Headnotes Hide Headnotes


Legal Ethics > Prosecutorial Ethics

HN1 Prosecuting attorneys must be particularly careful to avoid remarks or conduct which might influence juries beyond the evidence. More Like This Headnote


COUNSEL: Pamela I. Perry of Bierman, Shohat, Loewy & Perry, P.A., for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: FARMER, KLEIN, JJ., and WALDEN, JAMES H., Senior Judge, concur.

OPINIONBY: PER CURIAM

OPINION:

[*20] PER CURIAM.

We affirm all issues and write only to express our strong disapproval of the remarks made by the Assistant State Attorney, Alberto Milian, about the jurors who returned a verdict finding the defendant guilty of lesser included misdemeanors, and not the felonies with which he was charged.

After the jury was discharged, Mr. Milian argued that the defendant should be remanded to the custody of the sheriff for a presentence investigation. When the court expressed its disagreement, because the defendant was only found guilty of misdemeanors, Mr. Milian argued to the court that the jury was "made up of buffoons" and "lobotomized zombies," and suggested that this verdict was returned because they were "eating pizza [**2] or salads instead of deliberating." Mr. Milian said that this jury was "a classic reason I don't believe in the jury system."

A few days later Mr. Milian's picture and a large article were in the Sunday Fort Lauderdale Sun-Sentinel stating that he had referred to the jurors as "buffoons ... morons ... jerks ... and lobotomized zombies." Prior to the article, the fact that Mr. Milian had said these things had been reported to one of the jurors who was quoted in the newspaper article as saying she was very upset and planned to complain to the Florida Bar. She said his remarks made "us feel like pieces of dirt."

Even if this had been one isolated instance of an emotional outburst, Mr. Milian's conduct would be deplorable. Unfortunately this incident was not isolated (see Landry v. State, No. 92-1066 (Fla. 4th DCA June 30, 1993). In case Mr. Milian is unaware of it, "prosecutors are also members of the Bar, bound by the same rules and the same disciplinary process which apply to all lawyers." Jackson v. State, 421 So. 2d 15, 17 (Fla. 3d DCA 1982).

Rule 4-8.2(a) of the Rules of Professional Conduct provides:
(a) Impugning Qualifications and Integrity [**3] of Judges or Other Officers. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.


In Stewart v. State, 51 So. 2d 494, 495 (Fla. 1951), the court stated:


Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament. It imposes an added burden on the taxpayers [*21] for court expenses and clutters the docket of this court with unnecessary appeals. n1



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n1 Defendant argues on this appeal that Mr. Milian's remarks, and the subsequent publicity which was given to them, turned this case into a "cause celebre", which improperly intimidated the court into giving defendant a stiffer sentence than the conviction and presentence investigation warranted.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**4]

HN1Prosecuting attorneys must be particularly careful to avoid remarks or conduct which might influence juries beyond the evidence. Haager v. State, 83 Fla. 41, 90 So. 812 (1922). Although the remarks in the present case came immediately following the jury verdict, and could therefore have had no effect on this jury's verdict, their publication could certainly make future jurors reluctant to serve or acquit.

Affirmed.

FARMER, KLEIN, JJ., and WALDEN, JAMES H., Senior Judge, concur.

Anonymous said...

I am giving up my Westlaw account as I can read all the caselaw I need to see on this blog.

Hey... please do not paste long opinions into the blog.

Anonymous said...

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Anonymous said...

just post the funny ass one liners, like debating the virtues of scum bag vs. maggot. i'm cancelling westlaw, too.

i liked it the one time an asa called me a hired fun. it made me feel important, but i knew id have to get a mistrial and do it all over again. bittersweet

Anonymous said...

"i liked it the one time an asa called me a hired fun."

I guess that is better than a hired gun. Must have been a prostitution case.

Anonymous said...

"i liked it the one time an asa called me a hired fun."

I guess that is better than a hired gun. Must have been a prostitution case.

Anonymous said...

Scott Fingerhutt a good judge? The guy is a certifiable loon! This guy as a circuit judge would be like Caligula on an oxycontin high. Did his mom post that e-mail? Giving that guy a robe is like putting a vampire in charge of a blood bank. As for B. Miller, on what planet in this solar system would she be a model for other judges? The woman can't find the courthouse without a road map.

Lt. Daniel Kaffee said...

I think just citations will do a lot better than full text opinions next time.

Anonymous said...

9:44 poster......You obviously know nothing about B Miller. She was a very active trial prosecutor at the SAO and won the vast majority of her cases.

You're probably just another civil "litigator" who knows how to get the courtroom but has no idea what to do once there. If you had tried a criminal case against her (assuming you even tried cases), I bet she would've kicked your ass all over the courtroom. Go read the rules of evidence or something.

Anonymous said...

What is funnier than a civil attorney practicing in county court criticizing a former prosecutor or criminal defense attorney's knowledge of court proceedings? LOL

He/she probably billed a client for the time it took to post the stupid message about B. Miller.

Anonymous said...

The Sarmiento matter just goes to show how the SAO treats people differently. If he had been from Liberty City he would still be in jail awaiting trial.

But he is the son of a rich Cuban, so he got his case dismissed. Justice in Miami.

Anonymous said...

¡QUE VIVA LA RAZA!

Anonymous said...

FUCKERS!