Demitrius BELL, Appellant, v. STATE of Florida, Appellee, 723 So. 2d 896

FULMER, Judge. Demitrius Bell appeals his convictions for driving with a suspended license, resisting arrest with violence, possession of cannabis, and three counts of battery on a law enforcement officer. While we affirm the convictions, we write to address the issue raised concerning improper comments of the prosecutor during closing argument. The record reflects that the prosecutor vouched for the truthfulness of the officers, told the jury to send Bell a message, argued matters not in evidence, and commented on Bell’s exercise of his right to a jury trial.

Bell failed to preserve for review the alleged error concerning most of these comments. See Parker v. State, 705 So.2d 959 (Fla. 2d DCA 1998). Bell did object and request a curative instruction when the prosecutor told the jury that the “only one reason we’re here” was because Bell had a right to a jury trial. Although the trial court erred in overruling the objection, this comment alone was not so harmful as to survive a harmless error analysis. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Furthermore, we conclude that the unobjected-to comments do not constitute fundamental error. See Mordenti v.

State, 630 So.2d 1080 (Fla.1994). Consequently, we are compelled to affirm. However, our affirmance should not be construed as approval of the remarks made by the prosecutor. We continue to be concerned when trial counsel make improper arguments to a jury. At times it seems as if certain counsel consider the harmless and fundamental error rules to be a license to violate both the substantive law and the ethical rules that prohibit improper argument. We reiterate the admonition of Judge Blue in his specially concurring opinion in Luce v.

State, 642 So.2d 4 (Fla. 2d DCA 1994): “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.” Affirmed. QUINCE, J., concurs. ALTENBERND, Acting Chief Judge, concurs specially.