STEVENSON, J.
James P. Mullins appeals his convictions for manslaughter and two counts of culpable negligence resulting in personal injury, arguing that improper comments during closing argument compel reversal. We agree and reverse.
Anthony Gehle died as the result of an automobile collision that immediately followed an altercation between him and the defendant. Gehle's daughter and sister-in-law were also in the car and sustained injuries in the crash. Gehle's death and the injuries sustained by the daughter and the sister-in-law gave rise to criminal charges against the defendant.
Evidence at trial established that Gehle and his wife, Angela, were separated and that Angela was currently involved and residing with the defendant. On the day of the collision, Angela and the defendant had been arguing. Gehle arrived at Angela's home with the daughter they shared and his sister-in-law. Witnesses called by the State testified the defendant became aggressive toward Gehle and, after the defendant punched Gehle, Gehle got in his car to leave. As Gehle put the car in drive, the defendant ran towards Gehle's car. Gehle's wife testified that the defendant jumped on the hood. Others could say only that the defendant wound up on the car's hood.
Gehle's wife and daughter testified that the defendant attempted to punch Gehle through the car's window. In response to all of this, Gehle accelerated, ran through the stop sign, and turned onto the main road. Seconds later, Gehle's car was struck by an oncoming truck.
The driver of the truck testified that, as Gehle's car approached the intersection, he saw the defendant reaching in through the window. He could not say, however, whether the defendant was trying to hold on or was trying to punch the driver. The defendant rolled off the hood just prior to
During the initial closing, the prosecutor argued the defendant's jumping on the hood of Gehle's car, as Gehle was attempting to leave and defuse the situation, constituted the reckless conduct and culpable negligence necessary to establish the defendant's guilt of manslaughter. The theme of the defendant's closing was that Gehle caused his own death. Defense counsel argued that, even if it was true that the defendant had jumped on the hood, it was Gehle who accelerated, rather than stopping the car. And, he reminded the jury that, with the exception of the truck driver, all the State's witnesses had reasons to favor Gehle.
In rebuttal, the prosecutor argued the evidence proved it was the defendant who was the aggressor and the defendant who set the chain of events in motion by jumping on the hood and trying to punch Gehle through the window. The prosecutor then argued the following:
And, during this portion of the argument, the following Power Point slide was on the screen:
Defense counsel objected, insisting the comments amounted to a burden shifting argument and that, in fact, the entire presentation was a burden shifting argument. Defense counsel subsequently elaborated, explaining the prosecutor was arguing that, to find the defendant not guilty, the jurors had to believe the witnesses were lying and this was not the burden or standard. The judge ultimately overruled the objection and no curative instruction was given.
While counsel is afforded wide latitude in making closing remarks to the jury, it is improper to make comments that serve to shift the burden of proof. See, e.g., Mitchell v. State, 118 So.3d 295, 296 (Fla. 3d DCA 2013). Our supreme court has held that improper burden-shifting arguments include those that suggest the jury's finding as to the defendant's guilt turns upon which witnesses are more believable or which witnesses are lying, rather than upon whether the State has proven the elements of the charged offenses beyond a reasonable doubt.
Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998). See also Mitchell, 118 So.3d at 296-97 (holding prosecutor's arguments that "[w]hat the defense is asking you do is to believe that every single witness in this case is a liar, because that's what would have to happen for this man over here to be not guilty" and that "[i]n order to believe the defendant not guilty you would have to suspend all the evidence on its ear" were improper, burden-shifting arguments); Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA 1996) (arguments that if the jury believed the defendant's version of events, police could not possibly be telling the truth; that the jury had to decide whether police fabricated their testimony; and that "in order to find him not guilty you're going to have to believe that the defendant was telling the truth and the officer was lying" were improper).
Here, the prosecutor's remarks, inviting the jurors to determine the defendant's guilt based upon their assessment of the credibility of the witnesses, run afoul of these principles. The prosecutor told the jurors that, to find the defendant not guilty of manslaughter, they would have to find that all the witnesses lied about seeing the defendant jump on the hood of the car and swing. This is a misstatement of the law and the State's burden. The defendant's guilt hinged not upon whether the witnesses lied about seeing the defendant jump on the hood of the car and swing, but upon whether the jury believed that the defendant's actions caused Gehle's death and whether the defendant's actions rose to the level of culpable negligence.
Having found the comments were improper, we turn to the question of whether their making can be deemed harmless. We find the State cannot meet its burden in this regard. See Davis v. State, 121 So.3d 462, 491 (Fla.2013) ("`The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.'") (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)).
It was defense counsel's position that it did not really matter whether the defendant purposefully jumped on the hood or whether he wound up on the hood because Gehle struck him because, at the end of the day, the crash and Gehle's death were caused by Gehle's reaction — accelerating, rather than stopping. The prosecutor, though, placed emphasis on the testimony establishing that the defendant purposefully jumped on the hood and part of the theme of the prosecutor's closing was that the defendant's act of jumping on the hood was tantamount to culpable negligence.
Accordingly, the defendant's convictions are reversed and this case is remanded for a new trial.
Reversed and Remanded.
MAY and GERBER, JJ., concur.
Later, during rebuttal argument, the prosecutor continued with the theme: