Use of the Fact That Murder Was Committed While the Defendant Was on Community Control Did Not Violate the Defendant's Ex Post Facto Rights

In Urbin v. State, 714 So. 2d 411, 418 n.8 (Fla. 1998), the prosecutor cast the defendant as showing his "true, violent, and brutal and vicious character", as a "cold-blooded killer, a ruthless killer": exhibiting "deepseeded [sic] violence. It's vicious violence. It's brutal violence"; and that Urbin was "violent to the core, violent in every atom of his body." 714 So. 2d at 420 n.9. Regarding the comments in Urbin, we stated, "Plainly, these are not isolated comments of the type we have deemed harmless in other cases, but rather are akin to the dehumanizing comments we found improper in Bonifay v. State, 680 So. 2d 413, 418 n.10 (Fla. 1996)." 714 So. 2d at 420 n.9. Indeed, the almost verbatim incantation of these comments in both Urbin and this case is remarkable given this Court's unambiguous pronouncements over the last 50 years. See: Gore v. State, 719 So. 2d 1197, 1201 (Fla. 1998) (" It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness."); King v. State, 623 So. 2d 486, 488 (Fla. 1993) (stating that closing argument "must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant"); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988) ("When comments in closing argument are intended to and do inject elements of emotion and fear into the jury's deliberations, a prosecutor has ventured far outside the scope of proper argument."); Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985) (stating that closing argument "must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law"); Adams v. State, 192 So. 2d 762, 763 (Fla. 1966) (quoting from Stewart v. State, 51 So. 2d 494, 495 (Fla. 1951): "The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament."). Although this sampling of the caselaw is by no means exhaustive, it demonstrates that this Court has clearly and consistently condemned improper prosecutorial argument through the generations. For that reason, the State's argument that "to the extent that Urbin arguably sets forth a new rule of law, unless this Court explicitly states otherwise, a rule of law which is to be given prospective application does not apply to those cases which have been tried before the rule is announced," Appellee's Answer Brief at 60, is meritless on its face. Urbin simply reiterated what this Court's decisions have declared time and time again. Clearly, the State ignores the extensive case law citations throughout the opinion in Urbin, as well as the penultimate paragraph which begins, "The fact that so many of these instances of misconduct are literally verbatim examples of conduct we have unambiguously prohibited in Bertolotti, Garron, and their progeny . . . ." Urbin, 714 So. 2d at 422. The State also overlooks the statement, "This Court has so many times condemned pronouncements of this character in the prosecution of criminal cases that the law against it would seem to be so commonplace that any layman would be familiar with and observe it," commentary found in a 1951 opinion. Stewart v. State, 51 So. 2d 494, 494 (Fla. 1951).