Francis Majak Lai v. State of Florida , 251 So. 3d 333 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D16-1882
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FRANCIS MAJAK LAI,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.
August 1, 2018
RAY, J.
Francis Majak Lai and his co-defendant, Mackenley Fiacre,
were charged with killing Barnat Bella while burglarizing his
home. Both men were convicted of first-degree murder and armed
burglary and sentenced to life in prison on each count. This is Lai’s
appeal. Because we find no reversible error in the issues presented,
we affirm his convictions and sentences. We write to address a
comment made during the State’s closing argument and also note
that remand is necessary to correct a scrivener’s error on the
written judgment.
I.
Jacksonville law enforcement officers were dispatched to
Bella’s home late one evening after his security alarm activated.
They arrived to find his bedroom window “blown out” and the
blinds and curtains hanging outside the window. The bathroom
window in the rear of the home was broken as well.
Once inside, they discovered Bella lying in the hallway with
blood around his head and shell casings near his body. He had no
pulse. The medical examiner who conducted the autopsy would
later testify that Bella’s death was a homicide caused by a bullet
wound to the back of his neck that cut his spinal cord. The
characteristics of the wound indicated that the end of the gun’s
muzzle was almost touching Bella’s skin when the shot was fired.
Based on the locations of the glass around the two broken
windows, the crime scene detectives determined the bathroom
window was the entry point for the assailants and the bedroom
window was the exit point. Lai’s blood was found in the victim’s
hallway and bedroom, and Fiacre’s blood was found on a piece of
glass outside, under the broken bedroom window. 1
Kiristina Jok, who was Lai’s girlfriend at the time of the
crimes, testified that Lai and Fiacre were friends. On the evening
in question, Fiacre called her phone and she handed it to Lai. He
then left. When Jok saw Lai a few hours later, he looked upset and
had a cut on his arm. Jok tried to find out what had happened, but
he would not tell her anything that evening. The next morning, Lai
explained that he and “some other guy” broke into a house, the
other guy fought with Bella and shot him, and Lai cut his arm on
a window. Jok did not call the police. The couple broke up a week
later, although they remained friends.
Jennifer Masters testified for the defense. Lai was the father
of Masters’s grandchild, and Lai lived with her for two months
prior to his arrest. Lai told Masters that he could not pay rent
“because he was attacked and robbed.” On cross-examination, she
testified that she was originally going to be a State’s witness, but
the day before her testimony, she told the prosecutor for the first
time that she would testify that Lai told her he had been attacked
and robbed. Though Masters admitted she never told the police or
1 In an interview with police that was played for the jury,
Fiacre denied knowing Bella or being in his home.
2
prosecutor about Lai’s claim in the three years the case was
pending, she explained she had just remembered that detail and
pointed out that she had never been asked whether Lai told her he
was attacked. She admitted testifying in a prior deposition that
when she saw Lai after the murder, he had a cut on his arm and
he claimed he did not remember how he got it.
II.
In his first issue, Lai contends the trial court erred when it
refused to give a curative instruction and denied his motion for a
mistrial after he successfully objected to an improper comment
made during closing argument. During the course of trial, counsel
for both defendants implicitly or explicitly suggested that the
police were untruthful, the prosecutor pressured witnesses to
testify in the State’s favor, and the police and prosecutor may have
concealed evidence. During the State’s rebuttal closing, the
prosecutor attempted to refute those allegations by referencing the
evidence and explaining his actions. However, the prosecutor went
further, stating,
I’m hoping that maybe by what you saw with Jennifer
Masters and how that whole scenario went down, you
might see that cops and the government and the State
Attorneys we really don’t lie. You saw what happened—.
At that point, counsel for both defendants objected. The trial
court sustained the objection in front of the jury, but after a sidebar
conference, the court declined to give a curative instruction and
denied the defendants’ motions for mistrial.
Lai argues the comment that “cops and the government and
the State Attorneys we really don’t lie” improperly bolstered the
government witnesses’ testimony by suggesting that government
and law enforcement officials are inherently truthful or credible.
The State counters that the comment was invited by defense
counsel’s suggestion that the prosecutor and police were
pressuring witnesses, lying, and concealing, tampering with, or
planting evidence.
We review a trial court’s ruling on a motion for mistrial based
on improper prosecutorial comments for an abuse of discretion.
3
Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008). A trial court
abuses its discretion when no reasonable person would take the
view adopted by the trial court. Id. at 372. “In order for the
prosecutor’s comments to merit a new trial, the comments must
either deprive the defendant of a fair and impartial trial,
materially contribute to the conviction, be so harmful or
fundamentally tainted as to require a new trial, or be so
inflammatory that they might have influenced the jury to reach a
more severe verdict than that it would have otherwise.” Id.(quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)).
At the outset, we conclude that the prosecutor’s statement
constituted improper bolstering. A prosecutor may not bolster a
witness’s testimony by implying that one’s position as a law
enforcement official makes that witness more credible or less likely
to lie. See, e.g., Johnson v. State, 177 So. 3d 1005, 1008 (Fla. 1st
DCA 2015); Williams v. State, 747 So. 2d 474, 475 (Fla. 5th DCA
1999). We reject the State’s assertion that the comment was
justified as an invited response. While the prosecutor could have
pointed to facts in evidence to suggest that the officers in the case
were credible or that he was not pressuring witnesses to testify, he
could not suggest that State Attorneys, police officers, or other
government officials do not lie based on the nature of their
positions. Cf. Payne v. State, 233 So. 3d 512, 515 (Fla. 1st DCA
2017) (noting that it was improper to suggest that a deputy should
be believed because he is a sworn law enforcement officer in
response to defense attacking deputy’s credibility). Thus, the trial
court properly sustained the objection.
However, the trial court’s denial of the motion for mistrial was
not an abuse of discretion. The improper comment was an isolated
one. Cf. Jenkins v. State, 96 So. 3d 1110, 1113-14 (Fla. 1st DCA
2012) (finding prosecutor's comment, although improper, was
isolated and not grounds for a mistrial). Further, the context in
which the comment was made reveals that the prosecutor was
pointing to specific evidence in the record to demonstrate that
neither he nor the police were lying or concealing evidence. Finally,
the comment did not materially contribute to the verdict given the
evidence against Lai. Jok testified that Fiacre called Lai the night
of the murder and Lai left. When he returned, he had a cut on his
arm. The next day, he admitted taking part in a burglary during
4
which his co-perpetrator shot someone. Lai did not contest the
facts that his blood was in the house or that he cut himself from
glass from one of the broken windows. His theory of defense—
unsubstantiated by any direct evidence—was that he was an
invited guest of Bella’s that evening but he ran away and jumped
out the bedroom window when the real perpetrator showed up and
began firing. 2 This was not a case that rested solely on
circumstantial evidence or competing witness accounts. Cf.
Williams v. State, 673 So. 2d 974 (Fla. 1st DCA 1996) (reversing
conviction where prosecutor suggested officers would not lie where
whole case was based on whether defendant or police officers were
more credible). We conclude that the isolated comment, made in
response to defense suggestions of impropriety, did not vitiate the
entire trial and render it unfair.
III.
Although we find that no reversible error occurred below, one
matter needs to be corrected. Lai filed a motion to correct a
sentencing error because the written judgment reflects that he
entered a guilty plea when it should reflect that he was convicted
after a jury trial. It does not appear that the trial court ruled on
the motion within sixty days, so the motion is deemed denied. See
Fla. R. Crim. P. 3.800(b)(2)(B). We agree with Lai on this point and
direct the lower court to correct this scrivener’s error. See Blake v.
State, 187 So. 3d 1291 (Fla. 1st DCA 2016) (remanding for
correction of discrepancy between oral pronouncement and written
sentence).
AFFIRMED and REMANDED for correction.
B.L. THOMAS, C.J., and WOLF, J., concur.
2 Lai allegedly then climbed back in through a window to
check on Bella, which is how his blood ended up in the apartment.
The presence of Fiacre’s blood was not explained.
5
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Candice K. Brower, Regional Conflict Counsel, Gainesville, and
Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee,
for Appellant.
Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
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