holding it was a golden rule violation for state to argue to jury in sexual battery case: “Now, we men often times can't appreciate the assault on a body that a woman has to undergo when she is being raped or attempted to be raped, but I think we can think about it and kind of try to imagine, if you think of yourself in a similar situation . . . .”
How later courts described this case
- holding it was a golden rule violation for state to argue to jury in sexual battery case: “Now, we men often times can't appreciate the assault on a body that a woman has to undergo when she is being raped or attempted to be raped, but I think we can think about it and kind of try to imagine, if you think of yourself in a similar situation . . . .”
- quashed on other grounds by State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)
Written by the judges who cited it.
The opinion
MELVIN, Judge,
concurs in part and dissents in part.
While it is apparent that the prosecuting attorney was overzealous in his presentation of the State’s case to the jury and made several comments that were improper, I feel that the trial judge corrected the matter by instructing the jury to disregard such statements. Cumbie was not entitled to a perfect trial, and he certainly did not receive one. All he is entitled to is a fair trial, and I feel that he received that.
I would therefore affirm the judgment appealed from and remand the cause for the imposition of an appropriate sentence in harmony with North Carolina v. Pearce, referred to in the majority opinion.