Cummings v. State

District Court of Appeal of Florida

Cummings v. State

874 So. 2d 1203, 2004 Fla. App. LEXIS 6707, 2004 WL 1071776

CourtDistrict Court of Appeal of Florida

DecidedMay 14, 2004

DocketNo. 5D02-4085

StatusPublished

This text of 874 So. 2d 1203 (Cummings v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cummings v. State, 874 So. 2d 1203, 2004 Fla. App. LEXIS 6707, 2004 WL 1071776 (Fla. Ct. App. 2004).

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Opinion

GRIFFIN, J.

Appellant, Harold Cummings [“Cummings”], appeals his judgment and sentence for possession of cocaine with intent to sell/deliver. Cummings raises four claims of error. Although we find no reversible error, we believe one of the issues merits discussion. Cummings contends that the trial court erred in denying his motion for a mistrial because the prosecutor engaged in numerous acts of misconduct during closing argument.

Cummings correctly argues that during his closing argument, the assistant state [1204]*1204attorney violated several of the limitations that have been identified in the case law concerning arguments that should not be made. Mainly, the prosecutor made certain factual assertions not in evidence and attempted to bolster the credibility of witnesses by expressing his own belief in it. Perhaps the most egregious example was his effort to recount things he had heard from bystanders during the jury view. Defense counsel alertly and appropriately objected in virtually every instance and the trial court sustained the objections. The trial court did not find the prosecutor’s statements, singly or as a group, to warrant a mistrial, however, and Cummings’ requests for this relief were denied.

Sophomoric as the prosecutor’s errors were and much as we are aware that some prosecutors are disinclined to improve their skills and curb their excesses in the absence of appellate rebuke, we have examined the entire closing argument with care, and we simply cannot say the trial court abused its discretion by failing to mistry the case. See, e.g., Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002). The improper argument was not so frequent or so egregious as to deprive Cummings of a fair trial, and any harm was attenuated by the trial court’s actions in sustaining the objections and instructing the jury to disregard the remarks. Our view is reinforced by the fact that the improper argument pertained only to evidence on the charge of attempted second-degree murder, and the jury acquitted Cummings of this charge.

AFFIRMED.

MONACO, J., concurs. SAWAYA, C.J., dissents, without opinion.

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GRIFFIN, J.

Appellant, Harold Cummings [“Cummings”], appeals his judgment and sentence for possession of cocaine with intent to sell/deliver. Cummings raises four claims of error. Although we find no reversible error, we believe one of the issues merits discussion. Cummings contends that the trial court erred in denying his motion for a mistrial because the prosecutor engaged in numerous acts of misconduct during closing argument.

Cummings correctly argues that during his closing argument, the assistant state [1204]*1204attorney violated several of the limitations that have been identified in the case law concerning arguments that should not be made. Mainly, the prosecutor made certain factual assertions not in evidence and attempted to bolster the credibility of witnesses by expressing his own belief in it. Perhaps the most egregious example was his effort to recount things he had heard from bystanders during the jury view. Defense counsel alertly and appropriately objected in virtually every instance and the trial court sustained the objections. The trial court did not find the prosecutor’s statements, singly or as a group, to warrant a mistrial, however, and Cummings’ requests for this relief were denied.

Sophomoric as the prosecutor’s errors were and much as we are aware that some prosecutors are disinclined to improve their skills and curb their excesses in the absence of appellate rebuke, we have examined the entire closing argument with care, and we simply cannot say the trial court abused its discretion by failing to mistry the case. See, e.g., Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002). The improper argument was not so frequent or so egregious as to deprive Cummings of a fair trial, and any harm was attenuated by the trial court’s actions in sustaining the objections and instructing the jury to disregard the remarks. Our view is reinforced by the fact that the improper argument pertained only to evidence on the charge of attempted second-degree murder, and the jury acquitted Cummings of this charge.

AFFIRMED.

MONACO, J., concurs. SAWAYA, C.J., dissents, without opinion.

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874 So. 2d 1203, 2004 Fla. App. LEXIS 6707, 2004 WL 1071776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-state-fladistctapp-2004.

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