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Mitchell v. State

District Court of Appeal of Florida, Third District
Nov 15, 2000
771 So. 2d 596 (Fla. Dist. Ct. App. 2000)

Summary

holding the trial court properly overruled defense objection to the prosecutor's rhetorical questions during closing—“[W]here is the evidence in this case of crooked cops?” “The evidence in this case is uncontroverted, [etc.]”—as fair comment on the testimony of the police officers and fair response to the defense position

Summary of this case from Fana v. Sec'y

Opinion

No. 3D00-497.

Opinion filed November 15, 2000.

An appeal from the Circuit Court for Dade County, Stanford Blake, Judge, Lower Tribunal No. 99-023419.

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.

Before Cope, Fletcher and Ramirez, JJ.


Johnny Mitchell appeals his conviction for sale or delivery of cocaine. We affirm.

Defendant-appellant Mitchell argues that two of the prosecutor's comments during closing argument amounted to comments on the fact that the defendant did not testify at trial. We decline to address this part of the defendant's argument because no such objection was made in the trial court.

In the circumstances of this case, we fail to see how the remarks the defendant refers to could reasonably be construed as a comment on silence in any event.

The actual objections made by the defendant in the trial court were that two statements by the prosecutor amounted to shifting the burden of proof to the defendant. These objections were both properly overruled.

The defendant argued that he had been misidentified as the seller of the cocaine; that the testifying police officers knew that they had misidentified him; but that they were lying on the witness stand in order to cover up their misidentification. Defense counsel had told the jury in opening statement that various police officers would testify and that inconsistencies in their testimony would establish the truth of the defendant's position. These themes were reiterated by defense counsel in closing argument.

During the State's closing argument, the State asked, "where is the evidence in this case of crooked cops? You had many cops appear before you on the witness stand." Obviously this was a fair comment on the testimony of the police officers who testified, and a fair response to the defense position. The objection was properly overruled.

Later, the State discussed the elements of possession of cocaine and, after arguing that the State had established that the substance was cocaine, the State said, "The evidence in this case is uncontroverted. There is no material conflict in the evidence." The defense objected that this was shifting the burden of proof to the defendant. It cannot reasonably be so construed in the circumstances of this case, nor does it run afoul of Rodriguez v. State, 753 So.2d 29, 38-39 (Fla. 2000). See Rich v. State, 756 So.2d 1095, 1096 n. 1 (Fla. 4th DCA 2000).

Furthermore, this is not a case in which the defense put on no case. The centerpiece of the defendant's defense came when the defendant displayed to the jury a large scar he had on his chest which, the defense contended, could not have gone unnoticed because defendant was wearing no shirt during the hand-to-hand drug transaction. The defense argued that the scar had not been mentioned as an identifying feature prior to the time that the defendant was arrested. This established, in the defense's view, that the defendant had been misidentified.

Under the circumstances, the objections were properly overruled. The objected-to remarks were fair comment and did not constitute impermissible arguments that shifted the burden of proof.


Summaries of

Mitchell v. State

District Court of Appeal of Florida, Third District
Nov 15, 2000
771 So. 2d 596 (Fla. Dist. Ct. App. 2000)

holding the trial court properly overruled defense objection to the prosecutor's rhetorical questions during closing—“[W]here is the evidence in this case of crooked cops?” “The evidence in this case is uncontroverted, [etc.]”—as fair comment on the testimony of the police officers and fair response to the defense position

Summary of this case from Fana v. Sec'y

determining that the statement "where is the evidence in this case of crooked cops? You had many cops appear before you on the witness stand," was fair response to defense counsel's opening and closing statements that focused on the defense theory of the police knowingly misidentifying the defendant as the perpetrator

Summary of this case from Barry v. Jones

affirming the denial of a mistrial finding "[t]he objected-to remarks were fair comment and did not constitute impermissible arguments that shifted the burden of proof"

Summary of this case from Mintz v. State
Case details for

Mitchell v. State

Case Details

Full title:JOHNNY MITCHELL, Appellant, v. THE STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Nov 15, 2000

Citations

771 So. 2d 596 (Fla. Dist. Ct. App. 2000)

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