       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 15, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                  Nos. 3D11-1979, 3D11-1754 & 3D11-1675
                 Lower Tribunal Nos. 10-20301E & 10-20301C
                             ________________


                        Daniel Scala, Appellant,
                 and Alan Weitz, Appellant/Cross-Appellee,

                                        vs.

                            The State of Florida,
                           Appellee/Cross-Appellant.



      Appeals from the Circuit Court for Miami-Dade County, Darrin P. Gayles,
Judge.

      Richard C. Klugh, for appellants/cross-appellee.

    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham and Gabrielle
Raemy Charest-Turken, Assistant Attorneys General, for appellee/cross-appellant.


Before SALTER, EMAS and LOGUE, JJ.

      EMAS, J.
      Appellants Daniel Scala and Alan Weitz appeal from their convictions,

judgments and sentences for first-degree grand theft. The State of Florida cross-

appeals the downward departure sentence imposed on Alan Weitz.

      Appellants raise a number of claims in this appeal, including: errors

allegedly made during jury selection, in evidentiary rulings by the trial court

regarding central witness testimony and key exhibits, insufficiency of the evidence,

and improper closing argument by the State. We need not belabor this opinion

with a recitation of the lengthy history of these 2005 prosecutions and 2011 trial.

Regrettably, the transcripts of the trial are, in numerous and substantial passages

throughout    the   proceedings,   inaccurate,   incomplete,    contradictory    and

indecipherable.

      This appeal was formally stayed or otherwise delayed for more than four

years as a result of the pervasive errors, omissions and inadequacies of the

transcripts. During this four-year hiatus, the parties and the trial court attempted

valiantly to reconstruct these portions of the record, without success. After several

hearings on the matter, the trial court determined that there was no “means to

reliably correct substantial defects in the trial and hearing transcripts” based upon

“the extent and nature of the errors, the inability of the parties and the court

reporting firm to locate the court reporter, the existence of equivalent errors and

omissions in the court reporter’s original notes such that no new transcript would



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be different than the present version, and the passage of time that make any

attempt to recall any substantial portion of the record unrealistic.”

      Upon our independent review, we conclude that appellants have met their

burden of establishing that the transcripts contain pervasive and substantial errors,

omissions, inconsistencies, and inaccuracies. We further conclude that appellants

have demonstrated they are prejudiced by the inability to reconstruct portions of

the transcripts that bear directly on the claims raised in this appeal. See Jones v.

State, 923 So. 2d 486, 489 (Fla. 2006) (holding that, to be entitled to a new trial

based upon the absence of an accurate and complete transcript, the defendant must

“demonstrate that there is a basis for a claim that the missing transcript would

reflect matters which prejudice the defendant”). The unintelligible condition of the

relevant and necessary portions of the record precludes this court from providing

adequate and meaningful review of appellants’ claims, compelling us to reverse

and remand for a new trial. Delap v. State, 350 So. 2d 462 (Fla. 1977); Murphy v.

State, 789 So. 2d 1235 (Fla. 3d DCA 2001); Morgan v. State, 117 So. 3d 79 (Fla.

2d DCA 2013); Thomas v. State, 828 So. 2d 456 (Fla. 4th DCA 2002); Smith v.

State, 801 So. 2d 198 (Fla. 4th DCA 2001); McKenzie v. State, 754 So. 2d 851

(Fla. 2d DCA 2000).

      Because we are reversing and remanding this case for a new trial, we

address some of the improper comments made by the State during its closing



                                           3
argument, to ensure as best we can that such improper arguments are not repeated

at a new trial. The most egregious of these improper comments included the

following argument by the prosecutor in rebuttal:

      [PROSECUTOR]: You know there is an old saying among lawyers
      probably older than I am. When the facts are against you argue the
      law. When the law is against you argue the facts. When they are both
      against you blame the prosecutor.1 The evidence in this case, the law
      in this case both clearly lead you, and your common since (sic) to the
      escapable (sic) conclusion that these defendants committed grand
      theft. The defendants want to talk about everything accept (sic) the
      evidence.

      You know as a prosecutor I take an oath and have an obligation—
      affirmative obligation everyday I work. I work everyday I walk
      into court to only argue those things that I know are in good faith
      are (sic) true. The defense lawyers in this case didn’t find
      themselves so bound.

      The highlighted paragraph of the prosecutor’s closing argument is clearly

improper, as it attacks and denigrates defense counsel, implying at the very least

that defense counsel is not acting in good faith, and suggesting at the very worst


1In the interest of accuracy, the saying appears to originate from a collection of
poems, stories and yarns by Carl Sandburg:

      “If the law is against you, talk about the evidence,” said a battered
      barrister. “If the evidence is against you, talk about the law, and,
      since you ask me, if the law and the evidence are both against you,
      then pound on the table and yell like hell.”

Carl Sandburg, The People, Yes at 181 (Harcourt Brace & Co., First Harvest
Edition, 1990). It has long since been adapted and paraphrased in a variety of
ways, but not reportedly in the manner utilized by the prosecutor in the instant
case.

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that defense counsel lied to the jury—and that defense counsel was free to do so

because he is not bound by the same obligation and professional oath as the

prosecutor.   See, e.g., Evans v. State, 177 So. 3d 1219, 1237 (Fla. 2015)

(condemning comments in which prosecutor ridiculed defense counsel’s argument,

telling the jury “only in a world populated by defense attorneys would that

[argument] be true”); Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409

(Fla. 3d DCA 1995) (holding derogatory comments attacking the integrity of

opposing counsel improper); Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480

(Fla. 3d DCA 1990) (reversing for new trial where counsel continuously argued to

the jury that defense counsel had lied and had committed a fraud upon the court

and jury); Jackson v. State, 421 So. 2d 15, 16 (Fla. 3d DCA 1982) (reversing for

new trial based upon multiple personal attacks on defense counsel, culminating in

prosecutor asking jury rhetorically: “Would you buy a used car from this guy?”);

Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984) (condemning closing

arguments which, inter alia, described defense counsel as “hiding the ball,” and

arguing to the jury that defense counsel “is not being honest with you”); Briggs v.

State, 455 So. 2d 519, 521 (Fla. 1st DCA 1984) (holding “verbal attacks on the

personal integrity of opposing counsel . . . are wholly inconsistent with the

prosecutor’s role”).




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      The    State    contends    on    appeal    that   this   argument     was    an

“invited comment” or “fair reply” to defense counsel’s closing argument reference

to the prosecutor as a “persecutor.” We do not have the benefit of a complete

transcript of the closing arguments. However, even if the defense had made such a

comment, the prosecutor’s response was nevertheless improper.              The proper

response would have been to contemporaneously object to the defense’s

characterization and request a curative instruction to the jury and an appropriate

admonishment to defense counsel.2 As Judge Sorondo explained in his concurring

opinion in Fryer v. State, 693 So. 2d 1046, 1051 (Fla. 3d DCA 1997):

2 Further, if defense counsel had indeed made such an improper characterization,
the trial court itself was obligated to intercede, even in the absence of an objection.
As Judge Schwartz lamented three decades ago:

      Perhaps more important is the broader jurisprudential issue which is
      raised by cases like this. In our view, it is no longer—if it ever was—
      acceptable for the judiciary to act simply as a fight promoter, who
      supplies an arena in which parties may fight it out on unseemly terms
      of their own choosing, and then, on the ground that the loser has asked
      for what he received, obediently raise the hand of the one who
      emerges victorious. We demean ourselves and the system of justice
      we serve when we permit this to occur. In Schreier v. Parker, 415
      So.2d 794, 795 (Fla. 3d DCA 1982), we gave notice that “[a]rguments
      in derogation of Fla. Bar Code Prof. Resp. EC 7–24, DR 7–106(C)(3),
      (4) will not be condoned in this court, nor should they be condoned by
      the trial court, even absent objection. Hillson v. Deeson, 383 So.2d
      732 (Fla. 3d DCA 1980).”

Borden, Inc. v. Young, 479 So. 2d 850, 851-52 (Fla. 3d DCA 1985). See also
Jackson, 421 So. 2d at 16 (and cases cited). Regrettably, to this day, attorneys
persist in presenting patently improper arguments to the jury. See, e.g., Kaczmar
v. State, No. SC13-2247 at *7 (Fla. January 31, 2017); Sampson v. State, No.

                                          6
      The doctrine of invited comment does not contemplate that a
      prosecutor will sit silently while defense counsel pursues an
      impermissible line of argument so that he or she can then pursue his
      or her own impermissible and highly prejudicial response. In order to
      avail himself of the doctrine of invited comment the prosecutor in this
      case was obligated to object to the improper comments as they were
      made so that the trial judge could impose timely restrictions on
      defense counsel. . . .

      Had the prosecutor in this case objected to defense counsel's initial “I
      had a nightmare” comment, the trial judge could have sustained the
      objection and given a cautionary instruction to disregard the offensive
      comments and cautioned counsel about any further impermissible
      argument. . . . Just as defense counsel must object to improper
      comments of the prosecutor in order to preserve them for appellate
      review, Huff v. State, 437 So.2d 1087 (Fla.1983); Sanders v. State,
      638 So.2d 569 (Fla. 3d DCA 1994); Adams v. State, 585 So.2d 1092
      (Fla. 3d DCA 1991); Thompson v. State, 318 So.2d 549 (Fla. 4th
      DCA 1975), so must a prosecutor object to defense counsel's improper
      comments at trial in order to avail himself of the doctrine of invited
      comment.

      The defense made a contemporaneous objection to the prosecutor’s

improper argument, properly preserving this error.            Although, given our

disposition on other grounds, we do not reach the issue of whether this argument

independently requires a new trial, we note that a merits review would have been

conducted under the standard of harmless error, placing upon the State the burden

of establishing that there is no reasonable possibility that the error contributed to


3D15-1662 (Fla. 3d DCA March 15, 2017); Mora v. State, No. 3D15-1434 (Fla. 3d
DCA Feb. 15, 2017); Burger King Corp. v. Lastre-Torres, 202 So. 3d 872 (Fla. 3d
DCA 2016); City of Miami v. Kinser, 187 So. 3d 921 (Fla. 3d DCA 2016);
Constant v. State, 139 So. 3d 479 (Fla. 3d DCA 2014); Jennings v. State, 124 So.
3d 257 (Fla. 3d DCA 2013) (Emas, J., concurring in part and dissenting in part).

                                         7
the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). We also

note that the prosecutor compared appellants to bank robbers Bonnie and Clyde,

and to Willy Sutton (described by the prosecutor as a “famous bank robber” in the

1920’s and 1930’s).3 While these comments drew no objection from the defense,

these hyperbolic arguments are improper and unnecessary to achieve the legitimate

purpose of a closing argument:

      The proper exercise of closing argument is to review the evidence and
      to explicate those inferences which may reasonably be drawn from the
      evidence. Conversely, it must not be used to inflame the minds and
      passions of the jurors so that their verdict reflects an emotional
      response to the crime or the defendant rather than the logical analysis
      of the evidence in light of the applicable law.

Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985).


3  Additionally, the prosecutor told the jury, on at least two occasions, that the
defense attorneys were “simply blowing smoke in your face.”                  Such
characterizations denigrate opposing counsel and are improper. See, e.g., Howard
v. State, 152 So. 3d 825, 829 (Fla. 2d DCA 2014) (holding “comments that
‘impugn the integrity or credibility of opposing counsel’ are fundamental error by
themselves” (quoting Wicklow v. State, 43 So. 3d 85, 88 (Fla. 4th DCA 2010));
Brown v. State, 733 So. 2d 1128 (Fla. 4th DCA 1999) (holding prosecutor’s
ridiculing defendant’s theory of defense as a “smoke screen” improper); Olbek v.
Kraut, 650 So. 2d 1138, 1138 (Fla. 5th DCA 1995)(Griffin, J.,
concurring)(condemning comment characterizing opposing counsel’s arguments as
“smoke and mirrors”); Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988)
(holding prosecutor’s reference in closing argument to defense counsel’s “cheap
tricks” was beyond bounds of proper closing argument); Waters v. State, 486 So.
2d 614 (Fla. 5th DCA 1986) (holding repeated references to defense’s closing
argument as “misleading” and “a smoke screen” were improper). But see Ham v.
State, 580 So. 2d 868 (Fla. 3d DCA 1991) (holding that, when read in full context,
“smoke screen” comment by prosecutor was not a denigration of the defense, and,
even assuming it was improper, was harmless error.)

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      We do not seek to temper the prosecutor’s evident zeal, but only to ensure

that such zeal is confined to the clear boundaries demarked by the evidence, the

reasonable inferences therefrom, and the law applicable to the case. See Murphy

v. Intern. Robotic Sys., Inc., 766 So. 2d 1010, 1029 (Fla. 2000) (observing that the

case law and the rules of professional conduct are “in place to ensure that juries

render verdicts based on record evidence and applicable law, not based on

impermissible matters interjected by counsel during closing argument.”) See also

R. Regulating Fla. Bar 4-3.4(e) (providing: “A lawyer must not: . . . e) in trial,

state a personal opinion about the credibility of a witness unless the statement is

authorized by current rule or case law, allude to any matter that the lawyer does not

reasonably believe is relevant or that will not be supported by admissible evidence,

assert personal knowledge of facts in issue except when testifying as a witness, or

state a personal opinion as to the justness of a cause, the culpability of a civil

litigant, or the guilt or innocence of an accused.”) As the United States Supreme

Court observed more than 80 years ago, a prosecutor

      is the representative not of an ordinary party to a controversy, but of a
      sovereignty whose obligation to govern impartially is as compelling
      as its obligation to govern at all; and whose interest, therefore, in a
      criminal prosecution is not that it shall win a case, but that justice
      shall be done. As such, he is in a peculiar and very definite sense the
      servant of the law, the twofold aim of which is that guilt shall not
      escape or innocence suffer. He may prosecute with earnestness and
      vigor-indeed, he should do so. But, while he may strike hard blows,
      he is not at liberty to strike foul ones. It is as much his duty to refrain



                                          9
      from improper methods calculated to produce a wrongful conviction
      as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added).

      We decline to reach the other arguments raised by appellants and, given our

disposition of the appeal, we dismiss the State’s cross-appeal as moot.

      Reversed and remanded for new trial. Cross-appeal dismissed as moot.




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