Spriggs v. State , 392 So. 2d 9 ( 1980 )

WESSEL, JOHN D., Associate Judge.

During the closing arguments the prosecutor picked up the knife which was admitted into evidence as used by the appellant during an armed robbery, and said to the jury, “It’s not funny ... this is a weapon.”, and proceeded to stick the knife into the jury rail.¹

Appellant claims it was error for the Trial Court to allow this communication even without a motion for mistrial. It is clear that the prosecutor’s acts were designed to inflame the jury. Accordingly, we rebuke and admonish the prosecutor for his improper communication. Prejudicial comments or communications by a prosecutor in closing argument may be grounds for mistrial. Johnson v. State, 88 Fla. 461, 102 So. 549 (1924); Daugherty v. State, 154 Fla. 308, 17 So.2d 290 (1944); Glassman v. State, 377 So.2d 208, 3rd DCA (1979).

However, the Defendant’s own bizarre conduct, together with the continuous laughing and interruptions during the trial certainly provoked the prosecutor and solicited these comments. Pait v. State, 112 So.2d 380 (Fla.1959).

The evidence against the Defendant was overwhelming, and the Appellant’s failure to request the Court to rebuke the prosecutor for his misconduct during the trial, together with the overwhelming evidence forces the conclusion that the communication was harmless error. Washington v. State, 343 So.2d 908 (Fla.App.1977). Clark v. State, 363 So.2d 331 (Fla.1978).

AFFIRMED.

LETTS, C. J., specially concurs. BERANEK, J., dissents with opinion.

1 . Transcript, p. 312-3, provides:

MR. SMITH (Prosecutor)

***** sC

I’ll tell you what happens. He pulls a knife out, like this, and he says, “I’m going to kill you. This is a robbery unless I get the money.”

(Defendant laughs)

“Lay down on the floor.”

Now, he thinks this is funny. Well, I’ll tell you something. On the day this happened, he may be the only one who thought it was funny, because I’ll tell you Cecile Pollard was scared and her sister was so scared she was shaking and crying, and it’s not funny, and this isn’t any play toy. It’s a weapon.

MR. DYER: I object to that, Your Honor. I’d also like the record to reflect Mr. Smith just stuck a knife in the jury rail.

MR. SMITH: Let the record so reflect.

THE DEFENDANT: He’s murderous.

THE COURT: Overrule the objection. Go ahead.