4 Fla. L. Weekly Supp. 632a
Criminal law — Driving under influence — Argument — Prosecutor’s remark to jury asking “How can you even equate the honesty of law enforcement officers to that of the defendant,” patently improper — Prosecutor may never attempt to sway jury to believe the testimony of police officers merely because they are police officers — Reversal not required where error not preserved for appeal by objection and argument not so egregious as to constitute fundamental error
TIMOTHY L. BATES, Appellant, v. STATE OF FLORIDA, Appellee. 20th Judicial Circuit in and for Lee County. Case No. 95-1247AP. L.T. Case No. 94-31214 TT. Opinion issued November 15, 1996. Appeal from the County Court for Lee County; James R. Adams, Judge. Counsel: Larry D. Justham, Law Office of Peter Ringsmith, Ft. Myers, for Appellant. Tara Pascotto, Fort Myers, for Appellee.
(BAKER, Circuit Judge.) Appellant, who was found guilty of Driving Under the Influence at a jury trial, argues that he is entitled to a new trial because of the prosecutor’s improper remarks made during the course of trial. Appellant also appeals the manner of his sentencing. We affirm the conviction and sentence, but write this opinion as a deterrent to the prosecutor from improperly bolstering the credibility of law enforcement witnesses.
During closing argument, Ms. Pascotto asserted to the jury, “How can you even equate the honesty of law enforcement officers to that of the defendant.”
This remark is patently improper. A prosecutor may never attempt to sway the jury to believe the testimony of police officers merely because they are police officers. Garrette v. State, 501 So. 2d 1376 (Fla. 1st DCA 1987). Pascotto’s argument constituted an improper attempt to enhance the credibility of her witnesses.
Essentially, the prosecutor asked the jury to believe the law enforcement officers over ordinary citizens because the officers would not put their careers in jeopardy by lying. Her argument implies that police officers would have everything to lose and nothing to gain by lying on the stand. Davis v. State, 663 So. 2d 1379 (Fla. 4th DCA 1995). There is simply no evidence of this in the record.
In Davis, the Fourth District Court opined about the improper bolstering of law enforcement witnesses:
Care is often taken in voir dire to insure that a juror will not give more weight to a police officer’s testimony simply because he or she is a police officer. The type of argument made by the prosecutor in this case is an attempt to destroy that neutrality. It also potentially invites a defense lawyer to respond in kind, a practice we do not condone.
Id. at 1381.
Because this case was a swearing match between four officers, the defendant and his witness, the prosecutor’s error was certainly harmful. Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993).
At trial, defense counsel made a timely objection to the argument, but failed to properly preserve this issue for appeal by not requesting a curative instruction or moving for mistrial. The courts of appeal have required, absent a finding of fundamental error, that improper closing arguments be objected to, and a curative instruction be requested, or a motion for mistrial be made. State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995).
Because the error was not so egregious as to constitute fundamental error, we are required to affirm this conviction. We write only to caution the prosecutor from pursuing this manner of argument in the future.
The conviction and sentence are AFFIRMED. (GERALD and McIVER, JJ., concur.)
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