Redish v. State

525 So. 2d 928, 1988 WL 43406
CourtDistrict Court of Appeal of Florida
DecidedMay 4, 1988
DocketBR-370
StatusPublished
Cited by33 cases

This text of 525 So. 2d 928 (Redish 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
Redish v. State, 525 So. 2d 928, 1988 WL 43406 (Fla. Ct. App. 1988).

Opinion

525 So.2d 928 (1988)

Dorris Slater REDISH, Appellant,
v.
STATE of Florida, Appellee.

No. BR-370.

District Court of Appeal of Florida, First District.

May 4, 1988.

Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Redish appeals a judgment and sentence adjudicating him guilty and sentencing him to a total of two-and-a-half years' incarceration. We affirm all issues raised,[1] with the *929 exception of that pertaining to the issue of prosecutorial misconduct, which we agree requires reversal and remand of the case for new trial.

The appellant was accused by information in four counts: with racketeering in violation of the Racketeer Influenced and Corrupt Organization statute (RICO),[2] with charging usurious interest,[3] solicitation to commit grand theft,[4] and solicitation to make a false and fraudulent insurance claim.[5] The state's key witness, Joe Dunson, testified that the appellant had loaned him $6,000, with interest assessed at $1,500 every three months — the equivalent of 100 percent annual interest. After Dunson defaulted on his loan payments, he informed the police that the appellant had suggested that he burn down his house in order to obtain the insurance proceeds. Following up on this information, the police fitted Dunson with a listening device to wear during his next conversation with the appellant. During the course of the recorded conversation, later played before the jury, the appellant discussed at length how Dunson should carry out the suggested arson and warned him about the consequences of not paying the debt.

Contrary to Dunson's testimony, the appellant introduced into evidence loan papers reflecting a loan to Dunson of $7,500 with 12 percent annual interest, together with a mortgage on Dunson's home executed in favor of the appellant. The appellant contended that these papers were evidence of the true transaction between the parties, and that the other material contained in the recorded conversation was just "tough talk" made for the purpose of scaring Dunson into repaying the loan that was actually represented by the promissory note and mortgage. The jury rejected this argument and found the appellant guilty on all counts.

We address only the point on appeal relating to the remarks made by the prosecution during closing argument. The appellant contends that each of the following remarks constituted reversible error:

1. "Of course, Mr. Redish knowing that there was going to be a search of his house or a fifty/fifty chance of it, didn't leave any notes or loans around that show criminal usury —"
2. "Now he's on the stand being tried for this, he's going to lie to you."
3. "Gentlemen, if you succumb to the defense argument, you would be in violation of your oath as jurors."
4. "Despite the attempt to bring religion, to bring race, to bring old age and every other irrelevant issue into this courtroom by the defense and their cheap tactics, I submit that you as jurors with good common sense won't fall for these tricks."

Following the above comments, the defense objected and approached the bench. Only the objection to the second comment was overruled; the trial court sustained objections to the remaining remarks and instructed the jury to disregard them.

We agree with the state that the first two comments do not constitute reversible error. From our examination of the evidence it appears that the first remark was made in response to the appellant's earlier testimony that he had removed his records from his residence when he went out of town. On cross-examination, the appellant admitted that at the time of his departure he had already been questioned by the police, and he suspected that there was a "fifty-fifty chance" that his home would be searched. Under these facts, the trial court's curative instruction to the jury to disregard the inference suggested by the state that appellant had removed incriminating evidence was sufficient to avoid a mistrial.

*930 The second comment, stating that the defendant had lied during his testimony, has been upheld as proper argument if the evidence supports such a conclusion. See Craig v. State, 510 So.2d 857, 865 (Fla. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988), wherein the Florida Supreme Court observed:

When counsel refers to a witness or a defendant as being a "liar," and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration.

Here the prosecution introduced into evidence a taped conversation, disclosing that the appellant had told Dunson that he owed $1500 interest on the 90-day $6000 debt and warned him that he could lose his life if he did not pay. During direct examination, appellant denied the usurious interest rate and stated that he only wanted to "scare" Dunson into repaying the loan. Thus, the jury was clearly faced with two different versions of the events, and the prosecutor did not exceed the bounds of proper argument by suggesting that the defendant's testimony was fabricated.

We do agree, however, that the last two comments made by the state were improper and sufficiently prejudicial to constitute reversible error. The third remark, that the jury would be "in violation of your oath [sic] as jurors" if they "succumb[ed] to the defense argument," was, in our view, an impermissible attempt by the prosecution to instruct the jury as to its duties and functions. In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the prosecution, in response to the defendant's closing argument, made the following comment:

I don't know whether you call it honor and integrity, I don't call it that, [defense counsel] does. If you feel you should acquit him for that it's your pleasure. I don't think you're doing your job as jurors in finding facts as opposed to the law that this Judge is going to instruct you, you think that's honor and integrity then stand up here in Oklahoma courtroom and say that's honor and integrity; I don't believe it.

470 U.S. at 5-6, 105 S.Ct. at 1041 (e.s.). Although the Supreme Court held that this comment did not constitute plain error,[6] the Court stated:

The prosecutor was also in error to try to exhort the jury to "do its job"; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice... .

470 U.S. at 18, 105 S.Ct. at 1047-48. See also United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir.1986) ("There should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality.").

In the case at bar, the error, unlike that in United States v. Young,

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Cite This Page — Counsel Stack

Bluebook (online)
525 So. 2d 928, 1988 WL 43406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redish-v-state-fladistctapp-1988.