County Case No.: MM00-09933A-XX
Appeal No.: DD-33
MICHAEL G. BRAMBLE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Michael Raiden presiding. Appellant, Michael B. Bramble, by and through appellate counsel, argues that the prosecutor, during closing argument, made improper comments that even though not objected to constituted fundamental error which was so prejudicial as to warrant a new trial. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.
I.
At trial, the prosecutor, while summarizing the testimony of Mr. Tomko, a state witness, made the following comment: AHe told you the truth.@ (V1/T103-104) The prosecutor further stated AHe took the stand and he told you - - looked right in your eyes and said, `I never saw the guy before.=@ (V1/T104) Finally, the prosecutor stated, AMr. Tomko doesn=t have anything to gain. Think about what the defendant, Mr. Bramble, has to gain as you=re sitting back there deliberating.@ (V1/T111). During rebuttal, the prosecutor also made the following comments regarding Mr. Tomko and Detective Harper:
. . . [A]pply what you=ve heard from Mr. Tomko and Detective Harper. Even apply what Mr. Bramble said and the deputy that had nothing to lose here. . . . You know, he doesn=t get paid for making arrests; doesn=t get paid for doing it; he gets paid for doing his job. He had nothing to gain by coming in here today and telling you that he went out there and did the paperwork. (B1/T111)
The appellant argues that these statements made by the prosecutor during closing argument improperly bolstered the testimony of the state=s witnesses. Because counsel failed to object to the alleged improper comments, the appellant has not preserved the issue for review and therefore, his arguments are not cognizible on appeal. See Chandler v. State, 702 So.2d 186, 191 (Fla. 1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). The only exception to this procedural bar is where the comments constitute fundamental error. Street v. State, 636 So.2d 1297 (Fla. 1993). A[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.@ Mordenti v. State, 630 So.2d 1080, 1084 (Fla. 1994)(quoting State v. Johnson, 616 So.2d 1, 3 (Fla. 1993). See also State v. Delva, 575 So.2d 643, 644-45, (Fla. 1991)(quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960) (fundamental error is Athe type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error@). See also, Brown v. State, 787 So.2d 229 (Fla. 2d DCA 2001)(citing DeFretas v. State, 701 So.2d 593, 596 (Fla. 4th DCA 1997)(fundamental error is error that is >so fundamentally tainted that Aneither rebuke nor retraction may entirely destroy their sinister influence . . .@). A new trial is required where the Aprejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury . . .@ Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)(quoting Tysus v. Apalachicola Northen R.R. Co., 130 So.2d 580, 587 (Fla. 1961). The standard of review in the absence of an objection is whether Athe error committed was so prejudicial as to vitiate the entire trial.@ State v. Murray, 443 So.2d 955, 956 (Fla. 1984).
II.
It is well settled that control of the prosecutor=s comments to the jury is a matter within the trial court=s discretion and will not be disturbed absent a clear showing of abuse of discretion. Crump v. State, 622 So.2d 963, 972 (Fla. 1993). The courts of this state have recognized that wide latitude is permitted in arguing to a jury. Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Counsel may draw logical inferences and advance all legitimate arguments. Id. Parker v. State, 641 So.2d 369 (Fla. 1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995). Thus, a new trial should be granted only when it is Areasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done or in which the comment is unfair.@ Darden v. State, 329 So.2d 287, 289 (Fla. 1976), cert. denied, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).
Fundamental error has been demonstrated in cases where the cumulative effect of the argument deprived the appellant of a fair trial. See Breedlove; Ruiz v State, 743 So.2d 1, 7 (Fla. 1999)(when the properly preserved comments are combined with additional acts of prosecutorial overreaching the resulting convictions are irreparably tainted); Brown v. State, 787 So.2d 229 (Fla. 2d DCA 2001)(while no one comment in isolation would have been enough to warrant a new trial, all comments taken together constitute fundamental error); Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998) (improper bolstering of police officer testimony and mention of an officer=s funeral in the newspaper together with other improper comments cumulatively rose to the level of fundamental error); Ross v. State 726 So.2d 317 (Fla. 2d DCA 1998)(without objection, court hesitates to find reversible error; court nonetheless found as fundamental error repeated comments of prosecutor belittling defense witnesses and defendant); DeFreitas v.State, 701 So.2d 593 (Fla. 4th DCA 1997)(new trial required where numerous acts of prosecutorial misconduct were of such a nature and character that the cumulative and collective effect rose to the level of fundamental error); Pacifico v. State, 642 So.2d 1178, (Fla. 1st DCA 1994)(repetitious and egregious nature of prosecutorial misconduct during closing argument amounted to fundamental and reversible error); Knight v. State, 672 So.2d 590 (Fla. 4th DCA 1996) (combination of personal attacks on defense counsel, arguing facts not in evidence and bolstering of police officer testimony in closing argument rose to level of fundamental error); Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993)(prosecutor=s repeated references to the police officer=s Aunblemished record@ which was not supported by evidence in the record, constituted impermissible bolstering of the police witness and warranted reversal).
In contrast, those errors which do not rise to the level of fundamental error must be preserved by a contemporaneous objection on the record. Knight v. State, 746 So. 2d 423, 431 (Fla. 1998); Urbin v. State, 714 So. 2d 411, 418 (Fla. 1999). See Parker v. State, 641 So.2d 369 (Fla. 1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995)(comments characterizing the defense as a fantasy was fair comment and perhaps invited by closing argument by the defense); Crump v. State, 622 So.2d 963 (Fla. 1993)(prosecutor=s comments which allegedly gained sympathy for the victim; characterized the defense as an Aoctopus@ clouding the water to Aslither away@; and asking the jury to return a death sentence in order to send a message, did not constitute fundamental error); Craig v. State, 510 So.2d 857 (Fla. 1987)(prosecutor=s argument was merely in response to such arguments and suggestions made by defense counsel and did not constitute fundamental error); Henderson v. State, 727 So.2d 284 (Fla. 2d DCA 1999)(prosecutor=s remarks that defendant Awould not know truth if it hit him upside the head@, that acquittal would mean that witnesses were Aall a pack of liars@ and that defendant had invented a Afairy tale@ did not constitute fundamental error and thus defendant waived review by failing to object); Bell v. State, 723 So.2d 896 (Fla. 2d DCA 1998)(prosecutor=s vouching of officer=s testimony, telling jury to send a message, argument of matters not in evidence, and comment on defendant=s exercise of his right to a jury trial did not constitute fundamental error).
III.
In order to determine whether or not the cumulative effect of the comments complained of constitute fundamental error, the court must look at the entire trial record, taking into consideration the circumstances surrounding the comments complained. Breedlove. The court, having reviewed the record and having considered the context in which the statements were made, finds that the comments by the prosecutor did not rise to the level of fundamental error. Specifically, the comments regarding Mr. Tomko, were made in response to appellant=s own testimony in which he claimed that Mr. Tomko made up the theft charge to get back at him for an argument he allegedly had with Mr. Tomko the week before. Likewise, the comments regarding both Mr. Tomko and Deputy Harper were made during the rebuttal portion of the closing in an apparent response to comments made by the trial counsel for the appellant during closing. Parker v. State, 641 So.2d 369 (Fla. 1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995)(a defendant is not at liberty to complain about argument and comments made by the prosecutor during closing argument when the comments are an invited response); Craig v. State, 510 So.2d 857 (Fla. 1987)(prosecutor is permitted to respond to argument of defense counsel). Thus, this court finds that the statements were not so outrageous as to taint the jury=s finding of guilt. See Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985).
Accordingly, it is ORDERED that the judgement and sentence of the county court are AFFIRMED.
ORDERED November 2001.
Charles B. Curry, Chief Judge