Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993). · Go Syfert
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Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993). Cases Citing This Book View Copy Cite
42 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: ANTWAN STAFFORD v. STATE OF FLORIDA (fladistctapp, 2024-02-02)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 16 distinct citers.
discussed Cited as authority (rule) ANTWAN STAFFORD v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2024 · confidence medium
“The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that ‘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.’” Brooks v. State, 762 So. 2d 879 , 898–99 (Fla. 2000) (quoting McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999) (additional citations omitted)). “[W]here prejudicial conduct in its collective import is so extensive as to pervade the trial, a new trial should be award…
discussed Cited as authority (rule) STEPHEN BEROUTY v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
See Sampson v. State, 213 So. 3d 1090, 1093 (Fla. 3d DCA 2017) ("Upon our review of the entire closing argument, including the nature and number of the improper comments, the context in which they were made, and statements of law accompanying the improper arguments, we cannot say that these improper comments reached down into the validity of the trial such that a conviction could not have been obtained in the absence of these errors."), review denied, SC17-551, 2017 WL 4150355 (Fla. Sept. 19, 2017); Caraballo v. State, 762 So. 2d 542, 547 (Fla. 5th DCA 2000) ("[F]undamental error in closing oc…
examined Cited as authority (rule) Marco A. Rodriguez v. State (4×)
Fla. Dist. Ct. App. · 2017 · confidence medium
“Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Crew v. State, 146 So.3d 101, 108 (Fla. 5th DCA 2014) (quoting Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)).
discussed Cited as authority (rule) Crew v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
“Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).
discussed Cited as authority (rule) Servis v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
"Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).
discussed Cited as authority (rule) Caraballo v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
This court has held that fundamental error in closing occurs when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993), *548 quoting Tyus v. Apalachicola Northern R.R.
discussed Cited as authority (rule) Cedars Medical Center, Inc. v. Ravelo
Fla. Dist. Ct. App. · 1999 · confidence medium
Fundamental error in closing argument occurs when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)(quoting Tyus v. Apalachicola Northern R.R.
discussed Cited as authority (rule) Hill v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
Fundamental error in closing argument occurs when the “prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)(quoting Tyus v. Apalachicola Northern R.R.
discussed Cited as authority (rule) Jones v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
This court has held that fundamental error in closing occurs when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993), quoting Tyus v. Apalachicola Northern R.R.
cited Cited "see" Sempier v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).
cited Cited "see" Fasco Industries, Inc. v. Armbruster Products, Inc.
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993).
cited Cited "see" Bosch v. Hajjar
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); Davies v. Owens-Illinois, Inc., 632 So.2d 1065 (Fla. 3d DCA 1994).
cited Cited "see" Pippin v. Latosynski
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993).
discussed Cited "see, e.g." Lamore v. State
Fla. Dist. Ct. App. · 2008 · signal: see, e.g. · confidence medium
See, e.g., Servis v. State, 855 So.2d 1190, 1193 (Fla. 5th DCA 2003) (“Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.”) (quoting Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)).
cited Cited "see, e.g." Norman v. Gloria Farms, Inc.
Fla. Dist. Ct. App. · 1996 · signal: see also · confidence low
See also Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); S.H.
discussed Cited "see, e.g." SACRED HEART HOSP. PENSACOLA v. Stone
Fla. Dist. Ct. App. · 1995 · signal: see also · confidence low
See also Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993) (where counsel only objected to two of five improper comments, reversal was warranted because the combined effect of misconduct was so extensive that its influence pervaded the trial, gravely impairing calm and dispassionate consideration of the evidence and merits by the jury); Riley v. Willis, 585 So.2d 1024 (Fla. 5th DCA 1991) (expressions of personal belief by attorney created reversible error despite the absence of a contemporaneous objection as they were a breach of rule 4-3.4 and the combined effect of the comments required …
Marga R. SILVA, Appellant,
v.
Theresa Knight NIGHTINGALE, Appellee.
92-673.
District Court of Appeal of Florida, Fifth District.
Apr 16, 1993.
619 So. 2d 4
Peterson.
Cited by 32 opinions  |  Published

Jackson O. Brownlee of Brownlee, Hoffman & Jacobs, P.A., Orlando, for appellant.

Robert R. Jack and Susan W. Tolbert of Beers, Jack, Tudhope & Wyatt, Maitland, for appellee.

PETERSON, Judge.

Marga R. Silva appeals a judgment entered following a jury verdict in favor of Theresa Knight Nightingale. Nightingale admitted responsibility for rear-ending Silva's automobile, but the jury found that Silva sustained no permanent injuries or unreimbursed expenses as a result of the accident. Silva argues, inter alia, that the judgment should be vacated because Nightingale's closing argument included improper comments. We agree, vacate the judgment, and remand for a new trial.

Improper comments made by counsel for both plaintiffs and defendants, especially in trials involving personal injuries, are arising as points on appeal with alarming and increasing frequency. In some cases, the evidence clearly supports the verdict notwithstanding the comments made by counsel. Though the evidence submitted by Silva in support of her case-in-chief was weak, and though Nightingale might have prevailed had her counsel's comments been omitted, we cannot hold as a matter of law that the comments had no effect upon the jury's verdict.

A new trial is required "if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury... ." Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580, 587 (Fla.[*5] 1961); Nazareth v. Sapp, 459 So.2d 1088 (Fla. 5th DCA 1984).

Silva complains, inter alia, about the following comments made during Nightingale's closing argument:

(1) While referring to what Silva had said to one of her treating physicians, counsel stated, "I don't believe that."
(2) While discussing Silva's testimony that she was thrown back and forth during the collision, counsel stated, "Forget that, forget that that ever even was said."
(3) In discussing the testimony given by the chiropractor, counsel stated, "It's well known chiropractors will give a permanent impairment rating much quicker than any other physician."
(4) In remarking on Silva's inability to perform her work as a housekeeper at Walt Disney World, counsel stated, "To be quite frank I have made beds myself and I have vacuumed and I don't find it to be a debilitating experience."
(5) While speculating on the reasons Silva sought additional medical treatment, counsel stated, "I'm sure there were some legal considerations, too."

Only comments (3) and (4) were the subject of objections by trial counsel, while all five of the comments were mentioned in a motion for new trial. However, where prejudicial conduct in its collective import is so extensive as to pervade the trial, a new trial should be awarded regardless of the want of an objection. Tyus, 130 So.2d 580.

In Moore v. Taylor Concrete & Supply Company, Inc., 553 So.2d 787, 792 (Fla. 1st DCA 1989), the court stated, "It is axiomatic that a lawyer's expression of his personal opinion as to the credibility of a witness, or of his personal knowledge of facts in the case, is fundamentally improper." In each of the statements quoted above, Nightingale's counsel stated his own opinion, either expressly or by inference, as to the credibility of witnesses. The credibility of witnesses is for the jury to determine. While arguments may be made to point out conflicts in testimony, and while evidence may be introduced to impeach a witness's testimony, counsel should not do so in terms of his own opinion and experience.

It is generally improper for an attorney to testify for his client, and it is improper for an attorney to take on during argument the guise of an impeaching witness. Bloch v. Addis, 493 So.2d 539 (Fla. 3d DCA 1986). During the closing argument in Bloch, plaintiff's counsel argued without an evidentiary basis that, in a telephone conversation between himself and defendant's physician/expert witness, the latter failed to mention a disorder of the plaintiff. Counsel stated, "I know what I said to him on the telephone." Also without an evidentiary basis, he accused the physician of having written medical notes in the hallway outside the courtroom just before testifying. Finally, he accused the defendant of securing expert testimony from "country club" doctors eager to testify in behalf of the defendant physician. The third district reversed and remanded for a new trial, commenting: "The promise we made in Schreier v. Parker, 415 So.2d 794 (Fla. 3d DCA 1982), that we would not condone arguments such as that made in the present case, even absent objection, fulfilled in Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3d DCA 1985), is fulfilled once again." Bloch, 493 So.2d at 541. In the instant case, counsel's comment (3), that chiropractors more readily give permanent impairment ratings, may or may not be correct, but there was no competent evidence presented at trial to support this alleged fact. This comment was especially prejudicial to Silva since the chiropractor was the only witness who testified unequivocally that Silva suffered a permanent impairment as a result of the accident. Furthermore, Silva objected to the comment.

Comment (2) is also without justification. Implying that Silva's testimony was not credible, counsel instructed the jury to disregard it. In doing so, counsel assumed the role of a judge who had sustained an objection and had stricken testimony.

Rule 4-3.4(e) of the Rules Regulating the Florida Bar provides that a lawyer shall not, "in trial, allude to any matter that the lawyer does not reasonably believe is relevant[*6] or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused." The comments violated that rule, and we join the third district in its attitude toward improper arguments as expressed in Bloch.

The judgment is vacated and the cause remanded for a new trial. Should the same trial judge be assigned to preside over this case, we would remind him that it is his obligation to rule upon an objection once it is made.

VACATED; REMANDED.

DAUKSCH and DIAMANTIS, JJ., concur.