Opinion
Case No. 2D04-2477.
Opinion filed January 11, 2006.
Appeal from the Circuit Court for Lee County, Lynn Gerald, Jr., Judge.
Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
The State challenges the trial court order granting James W. Mathis, Jr.'s motion for new trial. In its order the trial court determined that the prosecutor had misstated the law during closing argument in Mathis' attempted second-degree murder trial. Although we agree with this conclusion, we disagree with the trial court's determination that the unpreserved error was fundamental. As such, we reverse.
The charge against Mathis stemmed from a gunfight in which Mathis was involved. According to the evidence introduced at trial, when Mathis arrived at Pop's Grocery on the day of the incident, some people who had congregated at the store began joking with him that Corey Smith, the victim, wanted to kill Mathis because he believed Mathis was involved in a burglary of his home. Smith arrived sometime later, approached Mathis, asked him about the burglary, and told him, "Well, there's going to be whatever, whatever when I see you." In his statement to police, Mathis said that he understood this to be a threat against him. Smith walked away from Mathis and approached a woman in a car. After Smith spoke with the woman, she drove out of the store's parking lot. She returned a few minutes later and walked over to Smith. Smith then walked away from the woman and pulled a gun out of his pants; he fired a shot at Mathis from ten feet away. The evidence at trial was undisputed that Smith fired the first shot. When Mathis ran to his car and opened the back door, Smith shot the car's front window out. Mathis retrieved a gun from the backseat of the car, and a gunfight ensued. During the exchange, a third individual, Michaud Mitchell, rode his bicycle behind Smith and shot him in the head. After Smith had fallen to the ground in a slumped position, Mathis came out from behind his car, approached Smith, and fired several shots into Smith's twitching body.
At trial, Mathis' theory of defense was self-defense. During closing argument, the prosecutor stated to the jury that the law on self-defense required Mathis to leave the scene at several points during the incident. At issue here are the prosecutor's statements to the jury that Mathis had a duty to retreat (1) once the people at the store jokingly informed him that Smith was going to kill him and (2) after Smith confronted him about the robbery, made the "whatever, whatever" threat, and walked away from Mathis. Defense counsel did not object to either of these comments by the prosecutor. The jury returned a verdict of guilty as charged, and Mathis moved for new trial pursuant to Florida Rule of Criminal Procedure 3.600.
In granting Mathis' motion for new trial, the trial court concluded that "the initial conversation and confrontation between the victim and [Mathis] did not give rise to the `duty to retreat' under the law. No weapons were brandish[ed]. The words did not indicate immediate danger." The trial court further concluded that because the jury could have based its guilty verdict on the prosecutor's repeated misstatements of the law, the error was fundamental and a new trial was required.
There are two grounds upon which a trial court may properly grant a motion for a new trial: "1) The trial judge becomes aware of some specific and substantial prejudicial error; or 2) The trial judge finds that the jury verdict is `contrary to the manifest weight of the evidence.'" Ford v. Robinson, 403 So. 2d 1379, 1382 (Fla. 4th DCA 1981) (quoting Collins Fruit Co. v. Giglio, 184 So. 2d 447 (Fla. 2d DCA 1966)). When the trial judge is determining whether there was a substantially prejudicial error, he sits, in essence, as an appellate judge. "If he concludes that reversible error has been committed, the judge is obliged to grant a new trial on the same basis that an appellate court would do so." Ford, 403 So. 2d at 1382. Additionally, the appellate review of the trial court's finding is "quite broad, the appellate court being on an `equal footing' with the trial court." Id. (quoting Collins Fruit Co., 184 So. 2d at 449).
On the other hand, when the trial court is to determine whether the verdict is contrary to the manifest weight of the evidence, the trial judge's exercise of his authority should not be disturbed by the appellate court unless the decision is an abuse of discretion. See id.
These principles have also been applied to criminal cases. For example, State v. Delafuente, 487 So. 2d 1083 (Fla. 4th DCA 1986), involved alleged prosecutorial misconduct stemming from the prosecutor's reference during closing argument to the defendant's failure to call a witness. Defense counsel failed to object and did not move for mistrial. After the jury returned a verdict of guilty, defense counsel moved for new trial based on the alleged error, and the trial court granted the motion. The Fourth District reversed because (1) the unpreserved error was not fundamental and (2) the error was harmless. Id. at 1085. In reaching its conclusion, the Fourth District reviewed the transcripts and, although not specifically stating so, applied a de novo standard of review. Id.
Similarly, the Third District reversed an order granting new trial in State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995). In that case, the alleged error involved the prosecutor's improper comment on the defendant's right to remain silent. Although defense counsel's objection was sustained, counsel neither requested a curative instruction nor moved for new trial. The Third District concluded that since the error was not preserved, the trial court erred in granting new trial. Id. at 1365. The court further concluded that even if the error had been preserved, it was harmless and that thus a new trial was improper. Id.
Both of these cases are similar to the one before us. The new trial here was also granted based on allegedly improper comment during closing argument by the prosecuting attorney. The error was not preserved by objection, request for curative instruction, or motion for mistrial. Thus, the trial judge, sitting "in essence" as an appellate court, should have granted the motion for new trial only if he concluded that the unpreserved error was fundamental and harmful. The trial judge did specifically find that the error was fundamental.
The initial issue to be resolved by this court is what standard of review should be applied to the trial court's order. As noted above, Ford is clear that when the trial court determines that the verdict is contrary to the manifest weight of the evidence, the abuse of discretion standard is applied. The same opinion refers to the other ground for a new trial as one involving substantially prejudicial errors for which the de novo standard is applicable. The alleged error in the case before us is clearly of the second type, and thus this court's review is quite broad, putting us on an "equal footing" with the trial court. See Ford, 403 So. 2d at 1382. We understand this to mean a de novo review.
In reviewing the record, we conclude that the trial court erred in finding the error to be fundamental. Florida Standard Jury Instruction (Criminal) 3.6(f) provides:
The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
. . . .
However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.
Although the prosecutor here may have correctly stated that once guns were drawn Mathis had a duty to retreat before resorting to deadly force, he expanded that legal requirement to situations in which a defendant is jokingly informed that he is in danger and situations in which vague threats are made by individuals who then walk away. This was improper. See Cave v. State, 476 So. 2d 180, 186 (Fla. 1985) ("Counsel may not contravene the law and the jury instructions in arguing to the jury.").
However, on appeal, the State argues that this error, which was not preserved by contemporaneous objection, is not fundamental. We agree. "The test for determining fundamental error is whether the error `goes to the foundation of the case or goes to the merits of the cause of action.' Specifically, prosecutorial misconduct constitutes fundamental error when, but for the misconduct, the jury could not have reached the verdict it did."Miller v. State, 782 So. 2d 426, 432 (Fla. 2d DCA 2001) (citations omitted).
Here, it cannot be said that absent the error, the jury would have returned a verdict of not guilty. See Miller, 782 So. 2d at 432. The trial court instructed the jury on justifiable use of deadly force and Mathis' duty to retreat. The testimony established that once Mitchell shot Smith in the head, Smith was slumped on the ground and his body was twitching. Mathis was not in imminent danger when he shot Smith several times. Accordingly, Mathis was not justified in using deadly force once Smith had been shot by Mitchell. As such, we cannot say that the prosecutor's statements, which were not objected to, were "so egregious as to warrant reversal." Cochran v. State, 711 So. 2d 1159, 1163 (Fla. 4th DCA 1998).
In conclusion, although we agree with the trial court that the prosecutor misstated the law in closing argument, because the error was not preserved and was not fundamental, we reverse the trial court's order granting Mathis' motion for new trial.
Reversed.
SALCINES and LaROSE, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.