Opinion
No. 79-1027.
November 19, 1980. Rehearing Denied January 21, 1981.
Appeal from the Circuit Court, 17th Judicial Circuit, Broward County, Stanton S. Kaplan, J.
Richard L. Jorandby, Public Defender, and Cathleen H. Brady, Asst. Public Defender, 15th Judicial Circuit of Florida, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
During the closing arguments the prosecutor picked up the knife which was admitted into evidence as used by the appellant during an armed robbery, and said to the jury, "It's not funny . . . this is a weapon.", and proceeded to stick the knife into the jury rail.
Transcript, p. 312-3, provides:
MR. SMITH (Prosecutor)
* * * * * *
I'll tell you what happens. He pulls a knife out, like this, and he says, "I'm going to kill you. This is a robbery unless I get the money."
(Defendant laughs)
"Lay down on the floor."
Now, he thinks this is funny. Well, I'll tell you something. On the day this happened, he may be the only one who thought it was funny, because I'll tell you Cecile Pollard was scared and her sister was so scared she was shaking and crying, and it's not funny, and this isn't any play toy. It's a weapon.
MR. DYER: I object to that, Your Honor. I'd also like the record to reflect Mr. Smith just stuck a knife in the jury rail.
MR. SMITH: Let the record so reflect.
THE DEFENDANT: He's murderous.
THE COURT: Overrule the objection. Go ahead.
Appellant claims it was error for the Trial Court to allow this communication even without a motion for mistrial. It is clear that the prosecutor's acts were designed to inflame the jury. Accordingly, we rebuke and admonish the prosecutor for his improper communication. Prejudicial comments or communications by a prosecutor in closing argument may be grounds for mistrial. Johnson v. State, 88 Fla. 461, 102 So. 549 (1924); Daugherty v. State, 154 Fla. 308, 17 So.2d 290 (1944); Glassman v. State, 377 So.2d 208, 3rd DCA (1979).
However, the Defendant's own bizarre conduct, together with the continuous laughing and interruptions during the trial certainly provoked the prosecutor and solicited these comments. Pait v. State, 112 So.2d 380 (Fla. 1959).
The evidence against the Defendant was overwhelming, and the Appellant's failure to request the Court to rebuke the prosecutor for his misconduct during the trial, together with the overwhelming evidence forces the conclusion that the communication was harmless error. Washington v. State, 343 So.2d 908 (Fla.App. 1977). Clark v. State, 363 So.2d 331 (Fla. 1978).
AFFIRMED.
LETTS, C.J., specially concurs.
BERANEK, J., dissents with opinion.
I find myself reluctantly concurring with Judge Wessel. It is tempting to agree with the dissent because of the prosecutor's reprehensible conduct. Nonetheless, I feel to do so would merely permit of an obviously guilty defendant to put society to the enormous expense and trouble of retrying him. In my view it is not the function of this court to teach prosecutors how to behave.
It is up to the trial judge to keep the decorum in his court and I will not presume to reverse Judge Kaplan based on the record before us. It goes without saying that to pull the knife-in-the-jury-rail trick is deserving of rebuke. However, defense counsel's reaction to it being done was hardly one of outrage and I cannot see fundamental error under all the circumstances.
I respectfully dissent. The prosecutor's theatrical use of a knife admitted into evidence by sticking it into the jury rail in close proximity to the jurors during closing arguments should not have been tolerated by the trial court. The defendant's conduct during the trial was bizarre, and the patience of the court and trial counsel may well have been sorely tested. Despite this fact, I would reverse and remand for a new trial. When the prosecutor stuck the knife in the jury rail, defense counsel objected. The objection was overruled, and defense counsel did not request a mistrial. I would find fundamental error and remand for a new trial.