Florida Third District Court of Appeal – Criminal Headnotes – December 12, 2018

  • Dec 20 2018


Direct appeal from conviction and sentencing for battery of a law enforcement officer.  The defendant argued that remarks made by the prosecutor in closing argument improperly shifted the burden of proof to the defense.

After the trial court denied the defendant’s motion for acquittal at the close of the state’s case, she testified as to her version of events, flatly contradicting the testimony of three arresting officers.  In rebutting defense counsel’s closing argument that the officers’ testimony “made no sense,” the prosecutor argued that “this case comes down to who you believe,” noting that the defendant had a motive to lie.

Defense counsel objected that this was a “misstatement of the law,” but the trial court overruled the objection, only later instructing the jury in general terms that it was the state’s burden to prove guilt beyond a reasonable doubt.

The appeals court rejected the state’s arguments (a) that the issue had not been preserved, (b) that the prosecutor’s argument was merely a comment on witness credibility, and (c) that in any event the error was harmless.

The prosecutor’s argument went beyond asking the jury to weigh the credibility of the witnesses, the appeals court said, and improperly implied that in order to acquit the defendant the jury would have to believe her story and disbelieve the testimony of the arresting officers.  The error was not harmless beyond a reasonable doubt, the court said, because the trial court overruled defense counsel’s objection and did not give a specific, curative instruction.

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Posted in: Criminal, Third DCA