Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-0154 _____________________________ JAMES LEON JACKSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. James H. Daniel, Judge. April 29, 2020 PER CURIAM. AFFIRMED. WOLF and ROBERTS, JJ., concur; B.L. THOMAS, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ B.L. Thomas, J., concurring. On August 27, 1984, the ten-year old victim and her two siblings stayed home from their first day of school to help their mother move out of their apartment while their father was deployed with the United States Navy. The victim and her eight- year old sister were playing with a beach ball in the courtyard behind their apartment when the two got into an argument, and the victim’s sister left the victim outside by herself. After about 30 minutes, the victim’s mother told the sister to go find the victim. The victim’s sister returned to the courtyard but was unable to find the victim. Eventually, she came across the beach ball they were playing with. She then came across the victim’s flip flops. Finally, she found the victim lying face down under the stairs of the apartment complex. The victim’s sister turned the victim over, thinking she was joking. The victim’s lips were blue, her pants were unbuttoned, and her neck was blazing. The victim’s sister also saw a tear still present in one of the victim’s eyes. After finding the victim, the victim’s sister went and got her mother. The victim’s sister admitted that the shock of seeing her sister’s dead body caused her to pull her hair out. The victim suffered several injuries. Her right cheek, including her eyelid was swollen. There was bruising on her right and left thighs. There were also injuries to the victim’s upper chest and neck, consistent with strangulation. There was hemorrhaging in the lining of the victim’s vocal cords, bleeding into the thymus, a tear on the tip of her tongue, and bruising on each side of the muscle of her tongue. There was also trauma to the victim’s vaginal area. After the initial investigation, no progress was made on the case for several years. In the late 1990s and early 2000s, NCIS assigned an agent to investigate the victim’s 15-year old homicide case. The agent brought the case to the attention of the Jacksonville Sheriff’s Office and worked with them to review the relevant evidence and continue the investigation. The NCIS agent collected several DNA samples, including a sample from Appellant. The agent also spoke to Appellant, who admitted he was alone at home sleeping when the incident occurred. 2 In 2013, investigators were notified that a partial DNA profile obtained from the victim’s sexual assault kit matched the DNA cheek swab of Appellant. As a result, Appellant was arrested and taken into custody. While Appellant was in custody, he talked about the case with fellow inmates. One of the inmates testified he completed a memorial tattoo for Appellant that contained the victim’s name, 1984, and clouds. The inmate testified that when he was completing the tattoo, Appellant became emotional and said that what he did was an accident. Appellant mentioned that the girl lived next door and her family was military. He also mentioned there had been two girls, but one left. Finally, he mentioned something about a stick and a ripped screen. Additionally, while he was in county jail, Appellant spoke to another inmate about his case. Appellant sought advice from the other inmate, who advised Appellant to tell the truth. Appellant replied by saying if he did that, he would never get out of jail. Appellant also told the inmate, “they would never suspected it was me if the little b*tch wouldn’t have broken my screen.” Appellant was worried because he thought they had his DNA. Appellant also asked the other inmate about the death penalty and whether they still used the electric chair. The inmate told him that they used lethal injection now. Appellant said that was good because he would rather have that than be electrocuted. In 2018, more extensive DNA testing was completed using vaginal swabs taken from the victim. The testing excluded 99.93% of males, but it did not exclude Appellant. Appellant’s trial began on November 26, 2018. The jury found him guilty of first-degree murder and sexual battery on a person less than 12 years of age. The State sought the death penalty, but a unanimous decision could not be reached, so Appellant was sentenced to consecutive life sentences. The one issue Appellant presented on appeal was that the prosecutor’s comments constituted improper bolstering and burden shifting. Appellant first argues the prosecutor erred by commenting about being a “sworn prosecutor,” which improperly bolstered the prosecutor in the eyes of the jury. Appellant also 3 argues the prosecutor made a comment that shifted the burden onto Appellant by stating: Again, the defense’s only real argument to you is that the samples, the DNA standard samples, from [Appellant] had to be switched with one of these other guys and the 17 other people that were excluded really is the match. Mind you, the defendant’s been sitting here since 2013, and the DNA analyst told you, they can test these things. All the way up to November, we were doing samples. That is not evidence in this case that somehow the samples were switched. He’s been sitting there this whole time. Appellant did not object to these comments during closing arguments, so this issue is reviewed for fundamental error. See Morton v. State, 789 So. 2d 324 (Fla. 2001). Fundamental error 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.” Brown v. State, 124 So. 2d 481, 484 (Fla. 1960). In determining whether improper remarks constitute reversible error, the comments are reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record. Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000). Appellant’s argument is without merit. When the prosecutor’s comments are reviewed in context, they do not individually nor cumulatively reach the level of fundamental error. Based on the evidence presented, a verdict of guilty could be reached without the prosecutor’s comments about being a “sworn prosecutor” and Appellant’s failure to offer additional DNA. Additionally, even if the prosecutor’s statements were error, such error was harmless. When considering the entire record, Appellant received a fair trial and there was enough evidence presented for the jury to find him guilty of first-degree murder and sexual battery. As a result, I concur in the affirmance of Appellant’s judgment and sentence. _____________________________ 4 Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 5