       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 9, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1864
                         Lower Tribunal No. 12-11242
                             ________________

                            Marquis Lammons,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Rodolfo Ruiz,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.

Before EMAS, FERNANDEZ and LUCK, JJ.

      PER CURIAM.

      Marquis Lammons appeals his conviction and sentence for armed

manslaughter, raising one issue.    Lammons contends his conviction must be
reversed because the state denigrated the defense during the rebuttal closing

argument.

      Lammons, after his arrest, gave a video-recorded statement where he

confessed to killing the victim. His able counsel spent a good deal of his closing

argument attacking the interrogation techniques law enforcement used to get the

confession, and argued to the jury that the confession was coerced. In response,

the state argued in its rebuttal closing:

      I said the defense counsel talks about words. He tells you what a good
      cop would say; he tells you what the state attorney’s going to say. And
      he uses words to make you have doubt. He says, “chained to a chair,”
      instead of handcuffed. He says, scheming to get a confession,” Instead
      of either of them doing their jobs, “storms out of the room,” instead of
      “I picked up my things and walked out.” It’s good lawyering. It’s a
      tactic.

Lammons objected to the trial court, and argues on appeal, that calling defense

counsel’s attack on the voluntariness of the confession a “tactic” improperly

denigrated the defense. We tend to agree that suggesting counsel’s defense theory

was a good lawyering tactic was improper. See Cardona v. State, 185 So. 3d 514,

523-24 (Fla. 2016) (accusing defense of using “diversionary tactics” was an

improper denigration of defense counsel); Mercury Ins. Co. of Fla. v. Moreta, 957

So. 2d 1242, 1251 (Fla. 2d DCA 2007) (concluding that “opposing counsel’s

criticism of Mercury’s alleged litigation tactics and practices was not based on

matters in evidence”); Harris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982)



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(reversing conviction and ordering new trial based on four instances of prosecutor

misconduct, including reference to victim’s tearful breakdown as “due to tactics of

defense counsel”); see also Chase v. Berbary, 404 F. Supp. 2d 457, 467 (W.D.N.Y.

2005) (finding improper prosecutor’s closing argument that “[t]here are typical

defense tactics and [defense counsel] employed them all,” although concluding on

habeas review that the comments did not deprive the defendant of a fair trial);

People v. Manier, 197 P.3d 254, 258 (Colo. App. 2008) (finding improper

denigration prosecutor’s comment regarding “common defense attorney tactic[s],”

although concluding the unpreserved error was not plain); People v. Adams, 511

N.Y.S.2d 548 (N.Y. App. Div. 1987) (“We disapprove of several of the remarks

made by the prosecutor during his summation which tended to denigrate the

defense counsel’s trial tactics.”); State v. Clemons, 696 N.E.2d 1009, 1023 (Ohio

1998) (finding improper denigration when the prosecutor commented, “You

remember the evidence you heard and I suspect I will be continually interrupted

throughout this closing argument. It’s kind of a tactic defense attorneys are

taught,” but concluding it was harmless).

      We conclude beyond a reasonable doubt, however, that any error was

harmless in that it did not contribute to the verdict. See Evans v. State, 177 So. 3d

1219, 1234 (Fla. 2015) (“For those closing arguments where the defense objected

to improper comments and the trial court erroneously overruled defense counsel’s



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objection, we apply a harmless error test.”).       We find the comment did not

contribute to the verdict, first, because it was isolated and made up only a small

part of the closing argument. The state did not repeat the “tactic” comment before

or after the objection, and did not make it a theme or feature of its rebuttal close.

The remark was one word in forty-three pages of the state’s closing argument. See

Bailey v. State, 199 So. 3d 304, 306 (Fla. 3d DCA 2016) (“While we find this

comment by the prosecutor to be improper and unnecessary ‘typification’ of the

defendant, we find that it does not rise to the level of reversible error for several

reasons. . . . [T]he improper comment constituted an isolated occurrence during

the course of the entire final argument.” (citations omitted)); Wellons v. State, 87

So. 3d 1223, 1225 (Fla. 3d DCA 2012) (“Having reviewed the record, including

the forty-one transcript pages of the State’s closing argument, we conclude that the

trial court did not abuse its discretion in denying the motion for mistrial. The

isolated comment made by the prosecutor during closing, while certainly improper,

was, in this case, harmless error.” (footnote omitted)).

      Second, while the comment was directed at defense counsel’s attack on the

voluntariness of the video-recorded confession taken at the police department,

there was a second, earlier confession the defendant made at the time of his arrest.

The “tactic” comment did not impact the second confession and the other

overwhelming evidence in the case. See Lugo v. State, 845 So. 2d 74, 107 (Fla.



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2003) (“A seasoned prosecutor involved in a capital case knows better than to

make an improper ‘Golden Rule’ argument. However, because this incident was

isolated, and an overwhelming amount of unrebutted evidence exists against Lugo,

we determine that the error is, on this record, harmless in nature and therefore deny

relief.”); Williams v. State, 10 So. 3d 218, 218 (Fla. 3d DCA 2009) (“The issue in

this case is whether the trial court abused its discretion by overruling defense

counsel’s objections to statements made during the State’s closing argument and

denying the defendant’s motions for mistrial following these statements. While we

find that the statements were improper, we affirm the defendant’s convictions

because, based on the overwhelming evidence of guilt, the error was harmless.”).1

      Third, the jury was properly instructed that it was not to consider the

attorneys’ statements as evidence. At the beginning of the case, the trial court told

the jury that “[w]hat the lawyers say is not evidence, and you should not consider it

as such.” And, again, just before the closing arguments, the trial court reminded

the jurors “that what the attorneys say is not evidence, and it is not your instruction

on the law.” See Zack v. State, 911 So. 2d 1190, 1209 (Fla. 2005) (“Even if the


1We understand that the harmless error test “is not a sufficiency-of-the-evidence, a
correct result, a not clearly wrong, a substantial evidence, a more probable than
not, a clear and convincing, or even an overwhelming evidence test.” Ventura v.
State, 29 So. 3d 1086, 1089 (Fla. 2010) (quotation omitted; emphasis in original).
We cite the second confession and other evidence only as one factor in our
conclusion that there was no reasonable possibility the “tactic” comment
contributed to the verdict.

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admission of this evidence was error, it was harmless. The prosecutor did not

argue Zack’s alleged hatred of women in closing argument. Additionally, the trial

court properly instructed the jurors as to the aggravating factors they could

consider. Thus, even if Dr. McClaren’s testimony was improperly admitted, any

error would be harmless beyond a reasonable doubt.” (citation omitted)); Almeida

v. State, 748 So. 2d 922, 927 (Fla. 1999) (finding closing argument error harmless,

in part, because the trial court instructed the jury that “what the lawyers say is

neither evidence nor law”).

      Finally, the jury was not swayed by the state’s comment given its lesser-

included offense verdict. Lammons was charged with, and the state argued that he

should be convicted of, second-degree murder, but the jury came back with the

lesser-included offense of manslaughter. See St. Louis v. State, 985 So. 2d 16, 17-

18 (Fla. 4th DCA 2008) (“In affirming, our court necessarily rejected the

contention that the closing argument comments evoking an appeal to sympathy

were so damaging as to deprive the defendant of a fundamentally fair trial. There

was copious evidence of the defendant’s guilt, and the jury actually convicted him

on a lesser offense than the second-degree murder with which he was charged. We

conclude that any error was harmless beyond a reasonable doubt.”).




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      We are convinced beyond a reasonable doubt the “tactic” comment did not

contribute to the jury’s verdict. For that reason, we affirm Lammons’ conviction

and sentence.

      Affirmed.




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