Florida Third District Court of Appeal – Criminal Headnotes – June 13, 2018

  • Jun 14 2018


Direct appeal from conviction for trespass and misdemeanor battery.  The defendant was charged by information with, among other things, armed burglary, domestic battery by strangulation, and kidnapping.  The jury convicted on lesser included offenses and acquitted on the kidnapping charge.

On appeal, the defendant argued that the prosecutor had made improper “golden rule” arguments in closing, asking the jury to place themselves in the victim’s shoes and imagine her pain and suffering.

The appeals court rejected this argument, finding that the prosecutor’s argument, taken in context, was in the nature of a rebuttal to the defense theory that the incident alleged did not even happen, or did not happen in the manner alleged by the state.

Both in cross-examination of the victim and in closing argument, defense counsel had cited inconsistencies between the victim’s testimony at trial and statements she had made to the police officer who had responded to an emergency call.  In closing argument, the prosecutor invited the jury to “think about the state of mind [the victim] was in” at the time she made her statements to the responding officer.  The defense objected.

The appeals court said it would not limit its consideration to “the words uttered” by the prosecutor, but would take into account “the relevance and purpose for which the argument was made; the trial evidence supporting the argument; the context in which the argument [was] made; and whether the argument [was] in fair reply to the issues raised or arguments advanced by the defense.”

The responding officer had testified that when he arrived, the victim was “perspiring heavily and breathing heavily,” that she “seemed to be fading in and out of consciousness,” and that “it wasn’t feasible to talk to her.”

Here, the court said, the prosecutor was not asking the jury to sympathize with the victim, so much as pointing to a reason why the victim’s statements at the time of the incident may have been incomplete or otherwise inconsistent with her later testimony.  This, the court said, was not improper argument.


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Posted in: Criminal, Third DCA, Violent Crimes