522 So. 2d 90 | Fla. Dist. Ct. App. | 1988
Lead Opinion
This cause is before us on appeal of a jury verdict finding appellant guilty of battery. The charge arose out of a fight at the Cross City Correctional Institution, which appellant helped guards break up. Several hours later, during a counseling session, a fight broke out between appellant and a guard. Other guards intervened, and appellant was subdued. Appellant was charged with battery on a correctional officer, a third-degree felony. The jury convicted appellant of simple battery, a lesser-included offense of battery on a correctional officer.
On appeal, appellant contends that the prosecutor’s closing argument, which belittled appellant’s defense of self-defense and told the jury not to show sympathy for appellant because he could have been charged with other batteries on several guards who intervened, required a new trial. After carefully reviewing the record, however, we affirm the conviction. Several of the prosecutor's comments were not unfair and were actually permissible comments on the evidence. Although the comment that appellant could have been charged with several other batteries was improper, no objection was made to it, and neither that comment nor any of the other, unobjected-to comments were so egregious as to amount to fundamental error. Consequently, they were not preserved for our consideration. See Clark v. State, 363 So. 2d 331 (Fla.1978); Ray v. State, 403 So.2d 956 (Fla.1981); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974). Compare with Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979); Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984); Tuff v. State, 509 So.2d 953 (Fla. 4th DCA 1987); Rosso v. State, 505 So.2d 611 (Fla. 3d DCA 1987).
Considering the entire record, we do not believe there is a “reasonable possibility” that the jury was influenced by the errors which were objected to. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).
AFFIRMED.
Dissenting Opinion
(dissenting).
The record in this case contains at least four different instances during which the prosecuting attorney made impermissible argument concerning appellant’s defense of self-defense. On at least two of these occasions, appropriate objection was made and overruled. In my view, the comments on the two occasions objected to by appellant were so grossly improper that it was clear error for the court not to sustain the objections to such comments. I, therefore, hold the view that the prosecutor’s conduct in this case, reading the objected to comments with the remaining objectionable statements in the record, so affected the outcome of this trial that the defendant was deprived of the right to a fair and impartial trial. The state has not shown to my satisfaction that these errors were harmless beyond a reasonable doubt under the test in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, I would reverse and remand for a new trial.
