         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


MARCO ANTONIO RODRIGUEZ,

             Appellant,

 v.                                                   Case No. 5D15-3622

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed February 10, 2017

Appeal from the Circuit Court
for Orange County,
Keith A. Carsten, Judge.

James S. Purdy, Public Defender, and Ali L.
Hansen, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      Marco Rodriguez appeals his convictions for lewd or lascivious molestation. The

jury may have reached the proper verdict, given the evidence in this case. However,

there is no doubt that Appellant was denied a fair trial due to egregious prosecutorial
misconduct, compounded by defense counsel’s unexplained failure to object.1 We are

compelled to vacate Appellant's conviction and remand for retrial. Appellant’s retrial is

not just a “do over.” The alleged victim, a child, will once again have to tell her story of

familial sexual molestation to a judge and a second jury, while Appellant will once again

be publicly accused and tried for sexually molesting a five-year-old. All of the witnesses’

normal schedules will be interrupted as they stand by to testify and attend court. Other

parties’ trials will be delayed because this case must be tried twice. Confidence in our

judicial system suffers when prosecutors are permitted to utilize clearly inappropriate

closing arguments to convict. Winning at all costs is too high a price to be paid by too

many.

        A criminal trial is supposed to be conducted in a neutral arena in which both sides

offer evidence for the jury’s consideration. Ruiz v. State, 743 So. 2d 1, 4 (Fla. 1999).

“Closing argument is an opportunity for counsel to review the evidence and to explicate

those inferences which may reasonably be drawn from the evidence.” Merck v. State,

975 So. 2d 1054, 1061 (Fla. 2007). “It is the responsibility of the prosecutor to seek a

verdict based on the evidence without indulging in appeals to sympathy, bias, passion or

prejudice.” Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983). If the prosecutor

makes clearly inappropriate comments during closing argument, defense counsel has an

affirmative duty to contemporaneously object, both to preserve the issue for appellate

review, and, for an equally or perhaps more important reason, to give the trial judge a

chance to remedy the potential harm by instructing the jury and avoiding its repetition in

that trial. Merck, 975 So. 2d at 1061; Dorsey v. State, 942 So. 2d 983, 986 (Fla. 5th DCA



        1   Appellate counsel were not the prosecution or defense trial counsel below.


                                               2
2006). “[T]he trial judge should not only sustain an objection at the time to such improper

conduct when objection is offered, but should so affirmatively rebuke the offending

prosecuting officer as to impress upon the jury the gross impropriety of being influenced

by improper arguments.” Edwards, 428 So. 2d at 359 (citations omitted).

      Appellant was on trial with regard to alleged specific incidents of sexual

molestation or abuse committed when the victim was five years old. The charged criminal

conduct concerned allegations of Appellant forcing the five-year-old victim to masturbate

him after they watched an inappropriate animated movie and additional claims that he

used a vibrator to massage the five-year-old’s vagina. These allegations of abuse came

to light approximately ten years later, when Appellant engaged in admittedly inappropriate

conduct. Specifically, Appellant confessed to massaging the teen’s breasts for about two

minutes while they were in a St. Augustine motel room with the victim’s sleeping mother.

Appellant was accused of other inappropriate sexually-oriented touching at the motel, but

denied these accusations.       The next morning, when the mother awoke from her

medication-influenced sleep, the victim told her what had taken place the night before

and what took place when the victim was five.

      The evidence of the charged crimes, namely what allegedly happened when the

victim was five, included the victim’s and mother’s testimony, pretrial statements made to

police by Appellant, recorded phone calls between the victim’s mother and Appellant, and

police testimony. The testimony and statements were not limited to what occurred to the

victim at age five; instead, there was an extensive amount of Williams2 rule evidence

about the events that took place ten years later at the St. Augustine motel.



      2   Williams v. State, 110 So. 2d 654 (Fla. 1959).


                                             3
       The prosecutor’s initial closing argument fell within the anticipated and acceptable

scope of reviewing and commenting on the evidence, the relative credibility of the victim

and Appellant, and a discussion of the verdict form. However, during his rebuttal closing

argument the prosecutor strayed from acceptable zealous representation, repeatedly

crossed far beyond the outer limits of acceptable argument, while venturing deeply into

the realm of prosecutorial misconduct. Unfortunately and inexplicably, defense counsel

sat silently by, never objecting, during the repeated improper comments made by the

prosecutor. Thus, we must consider whether the prosecutor’s inappropriate remarks

made during closing amount to fundamental error.            “Fundamental error in closing

arguments occurs when the prejudicial conduct in its collective import is so extensive that

its influence pervades the trial, gravely impairing a calm and dispassionate consideration

of the evidence and the merits by the jury.” Crew v. State, 146 So. 3d 101, 108 (Fla. 5th

DCA 2014) (quoting Silva v. Nightingale, 619 So. 2d 4, 5 (Fla. 5th DCA 1993)).

       The prosecutor repeatedly referred to Appellant as a “pedophile.” Inflammatory

labels used by a prosecutor to describe the defendant are improper invitations for the jury

to return its verdict based on something other than the evidence and applicable law.

Vituperative or pejorative characterizations of a defendant are not acceptable tools to be

employed by the prosecutor. Crew, 146 So. 3d at 109. Calling Appellant a pedophile was

“clearly designed to inflame the prejudices of the jury and constituted an impermissible

general attack on [his] character.” Petruschke v. State, 125 So. 3d 274, 280 (Fla. 4th

DCA 2013). Referring to a defendant as a “pedophile” suggests the defendant has

engaged in repeated sexual abuse of minors and raises a profiling argument, namely that

because he is a pedophile, it is likely that he would sexually molest children, including this




                                              4
meaningful discussion with the Florida Bar or a local professionalism panel. Likewise,

well informed defense counsel will be positioned to effectively advocate for Appellant by

contemporaneously objecting to any perceived inappropriate arguments. Further, we

note that trial courts have a duty, even without hearing any objection, to bring a swift and

sure end to prosecutorial misconduct in closing argument, especially when it becomes as

frequent and flagrant as in this trial. See Crew, 146 So. 3d at 111 (Berger, J., concurring);

Borden v. Young, 479 So. 2d 850, 852 (Fla. 3d DCA 1985).

       Finally, we also have a duty to take appropriate action concerning what we

perceive to be several clear departures from professionalism and possible ethical

violations on the part of the prosecutor. See Fla. Code of Jud. Conduct, Canon 3D(2); R.

Regulating Fla. Bar 4-3.4(c), 4-3.4(e), & 4-3.5(a). If this argument had taken place in our

court, we might have been able to take appropriate action by determining whether the

prosecutor’s lapse in professionalism was intentional and deserving of some sanction or

whether it would be better addressed by a strong rebuke from this court accompanied by

directions for the prosecutor to become well educated on proper closing argument.

However, we did not have that opportunity to directly address the attorney or the conduct.

Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar

with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney

who prosecuted this case on behalf of the State at the trial court level, so that the Bar or

on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how

best to address this lawyer and the unfortunate conduct.

       REVERSED AND REMANDED FOR A NEW TRIAL




                                                9
       To further erode the fairness of the trial, during closing arguments, the prosecutor

misstated, misrepresented, and/or inaccurately recounted certain evidence, including

repeatedly saying that Appellant had admitted to several specific inappropriate sexually-

related activities with the victim, when in fact Appellant had consistently, repeatedly

denied them. “[M]isquoting a defendant or implying a defendant said something [that he

did not] is a misrepresentation of the evidence.” Crew, 146 So. 3d at 108 (citing State v.

Cutler, 785 So. 2d 1288 (Fla. 5th DCA 2001)). As the Sixth Circuit Court of Appeals

explained:

              Misrepresenting facts in evidence can amount to substantial
              error because doing so may profoundly impress a jury and
              may have a significant impact on the jury’s deliberations. For
              similar reasons, asserting facts that were never admitted into
              evidence may mislead a jury in a prejudicial way. This is
              particularly true when a prosecutor misrepresents evidence,
              because a jury generally has confidence that a prosecuting
              attorney is faithfully observing his obligation as a
              representative of a sovereignty.


Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (internal citations omitted).

       There are more examples of the prosecutor approaching or crossing the line of

proper closing argument by: (i) repeatedly calling Appellant a liar3; (ii) making nationalistic

appeals to what sexual information the people of the United States do not want five year

olds to have; (iii) ridiculing Appellant's position with sarcastic remarks and comments; (iv)

and stating that Appellant violated one of the most sacred duties of our society by his



       3  It may be acceptable for a prosecutor to argue that the defendant has not been
truthful, and even to use the words “lie” and “liar” if the evidence supports the argument
as long as the prosecutor does not invite conviction based solely on who is telling the
truth, and the jury is instructed to reach its verdict based only on the evidence and the
law. Compare Craig v. State, 510 So. 2d 857, 865 (Fla. 1987), with Pacifico v. State, 642
So. 2d 1178, 1183 (Fla. 1st DCA 1994).


                                              6
conduct. Each of these comments invited the jury to return a verdict for any number of

reasons other than proof of guilt beyond a reasonable doubt.                The prosecutor’s

continuous and varied improprieties here raise the concern that this may not have been

“merely [an] isolated example[] of understandable, if inexcusable overzealousness in the

heat of trial,” but rather suggests that the improprieties may have been “deliberately

calculated to accomplish just what representatives of the state cannot be permitted –

inducing a jury to convict by unfairly prejudicing it against the defendant.” Jackson v.

State, 421 So. 2d 15, 16 (Fla. 3d DCA 1982).

       “While ‘wide latitude is permitted in closing argument, . . . this latitude does not

extend to permit improper argument.’” Cardona, 185 So. 3d at 520 (alteration in original)

(quoting Gore v. State, 719 So. 2d 1197, 1200 (Fla. 1998)). “As we have stated for

decades, we expect and require prosecutors, as representatives of the State, to refrain

from engaging in inflammatory and abusive arguments, to maintain their objectivity, and

to behave in a professional manner.” Id. at 516 (citations omitted).            In order for a

prosecutor’s improper comments in closing to be deemed so unfairly prejudicial as to

require a new trial, “they must vitiate the trial or so poison the minds of the jurors that [the

defendant] did not receive a fair trial.” Gonzalez v. State, 786 So. 2d 559, 567 (Fla. 2001)

(internal quotation marks omitted) (quoting Harris v. State, 742 So. 2d 835, 839 (Fla. 2d

DCA 1999) (additional citation omitted)).

       “The general rule is that the failure to raise a contemporaneous objection to those

comments constitutes a waiver of the right to claim error on appeal.” Davis v. State, 937

So. 2d 273, 275 (Fla. 4th DCA 2006) (citation omitted). Appellant offers no explanation

for why defense trial counsel failed to object to the many improper remarks made by the




                                               7
prosecutor during rebuttal closing arguments. “The sole exception to the general rule is

where the unobjected-to comments rise to the level of fundamental error, which has been

defined as error that ‘reaches down into the validity of the trial itself to the extent that a

verdict of guilty could not have been obtained without the assistance of the alleged error.’”

Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2003) (quoting McDonald v. State, 743 So.

2d 501, 505 (Fla. 1999) (additional citations omitted)). “[W]here prejudicial conduct in its

collective import is so extensive as to pervade the trial, a new trial should be awarded

regardless of the want of an objection.” Silva, 619 So. 2d at 5 (citation omitted).

       “Taken individually, in a different case, the prosecutor’s comments may not have

been so egregious as to warrant reversal.         However, the remarks must be viewed

cumulatively in light of the record in this case.” Cochran v. State, 711 So. 2d 1159, 1163

(Fla. 4th DCA 1998). The flood of improper prosecutorial comments in closing argument

in this case was deep, wide, and unrelenting; it made a mockery of the constitutional

guarantee of a fair trial for Appellant. “Here, the improprieties in the prosecutor’s closing

argument reached the critical mass of fundamental error.” Id. Even if we were convinced

that the State had presented sufficient evidence to support the jury’s verdict, a new trial

is required because of the detrimental effect of the closing argument in this case.

Cardona, 185 So. 3d at 519.

       Since there must be a retrial, we advise the attorneys who will prosecute and

defend to carefully read our opinion and the many important cases which we have cited

so that there will be no doubt where admirable advocacy ends and inappropriate, unfair

closing argument begins. Armed with that knowledge, the prosecutor can zealously

pursue justice, avoid snatching defeat from the jaws of victory, and dispense with a




                                              8
meaningful discussion with the Florida Bar or a local professionalism panel. Likewise,

well informed defense counsel will be positioned to effectively advocate for Appellant by

contemporaneously objecting to any perceived inappropriate arguments. Further, we

note that trial courts have a duty, even without hearing any objection, to bring a swift and

sure end to prosecutorial misconduct in closing argument, especially when it becomes as

frequent and flagrant as in this trial. See Crew, 146 So. 3d at 111 (Berger, J., concurring);

Borden v. Young, 479 So. 2d 850, 852 (Fla. 3d DCA 1985).

       Finally, we also have a duty to take appropriate action concerning what we

perceive to be several clear departures from professionalism and possible ethical

violations on the part of the prosecutor. See Fla. Code of Jud. Conduct, Canon 3D(2); R.

Regulating Fla. Bar 4-3.4(c), 4-3.4(e), & 4-3.5(a). If this argument had taken place in our

court, we might have been able to take appropriate action by determining whether the

prosecutor’s lapse in professionalism was intentional and deserving of some sanction or

whether it would be better addressed by a strong rebuke from this court accompanied by

directions for the prosecutor to become well educated on proper closing argument.

However, we did not have that opportunity to directly address the attorney or the conduct.

Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar

with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney

who prosecuted this case on behalf of the State at the trial court level, so that the Bar or

on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how

best to address this lawyer and the unfortunate conduct.

       REVERSED AND REMANDED FOR A NEW TRIAL




                                                9
ORFINGER, J., concurs.

PALMER, J., dissents with opinion.




                                     10
PALMER, J., dissenting.                                                      5D15-3622

      I respectfully dissent because, in my view, the unobjected-to statements made by

the prosecutor, although improper, do not rise to the level of fundamental error.




                                           11
