Brief 3
PRELIMINARY STATEMENT
Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein as “the Defendant” or by name. Appellee, the State of Florida, will be referred to as “the State.”
The Record on Appeal is contained, in total, in four (4) volumes. References to the initial volume of the record will be cited using the abbreviation “R” followed by the appropriate page number(s). References to the trial transcript volumes will be cited using the abbreviation “JTI” or “JTII” followed by the appropriate transcript page number(s). References to the final disposition transcript will be cited using the abbreviation “S” followed by the appropriate transcript page number(s). Exhibits, if cited, will be cited using the abbreviation “Ex” followed by the appropriate exhibit number.
STATEMENT OF THE CASE AND OF THE FACTS
A. Nature of the Case
This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, Case Number: 20XX-CF-XXXX, rendered against Mr. XXXXXXXXXX, Appellant, Defendant below, on XXXXX, 20XX. (R: 68-79); (S: 20).
B. Course of Proceedings Below and Statement of the Facts
XXXXXXXXXX was arrested and charged with criminal offenses after a confrontation in which he acted violently towards Florida Department of Children and Families employee XXXXXXXXXX. The confrontation between XXXXXXXXXX and XXXXXXXXXX took place at Mr. XXXXXXXXXX’s Tallahassee residence on XXXXX, 20XX. (R: 4-7). During the months between Mr. XXXXXXXXXX’s arrest and the beginning of his trial, XXXXXXXXXX was charged with various criminal offenses as the State’s theory of Mr. XXXXXXXXXX’s conduct shifted. (R: 4; 1; 2); (JTII: 294).
Days before the trial in Mr. XXXXXXXXXX’s case, the State filed a Second Amended Information charging Mr. XXXXXXXXXX with three offenses: a) Aggravated Assault with a Firearm; b) Aggravated Battery with a Firearm and c) Child Abuse. (R: 3). The State alleged that XXXXXXXXXX committed the aggravated assault and the aggravated battery against XXXXXXXXXX. The State alleged that XXXXXXXXXX committed child abuse against a child K.P. by pushing or knocking-down XXXXXXXXXX and causing her to drop the child. (R: 3).
Aggravated Assault is a felony of the third degree and is codified at Section 784.021, Florida Statutes. Aggravated Battery is a felony of the second degree and is codified at Section 784.045, Florida Statutes. Child Abuse is a felony of the third degree and is codified at Section 827.03, Florida Statutes.
All three of the charged offenses were alleged to have taken place during the confrontation which occurred at XXXXXXXXXX’s home when XXXXXXXXXX arrived unannounced with the stated intention of removing the child K.P. from the custody of Mr. XXXXXXXXXX and his wife XXXXXXXXXX. (R: 3; 5); (JTI: 37-41; 46-47; 110-121); (JTII: 335; 338-341; 363-364). Trial testimony established that K.P. was less than two months old on the date of the confrontation. (JTII: 231).
XXXXXXXXXX claimed self-defense as to all three offenses – XXXXXXXXXX claimed that he used non-deadly force in defense of his child K.P. who was being removed from his home by XXXXXXXXXX without justification. (R: 31-32; 34-36; 37-39); (JTI: 167-169); (JTII: 261; 293-302; 305; 314; 321; 323; 339; 349-350; 352; 355-356). Ms. XXXXXXXXXX testified that the confrontation took place within the span of three minutes. (JTI: 151).
The trial court proposed instructing the jury as to the forcible felony instruction. (JTII: 298). Defense counsel objected. (JTII: 298-299)(“…I do not believe that applies in these circumstances.”).
Despite defense counsel’s objection the jury was instructed as to the forcible felony instruction on all three counts. (R: 31-32; 34-36; 37-39); (JTII: 314; 320; 323).
The jury returned a guilty verdict as to all three counts. (JTII: 368-369). XXXXXXXXXX was eventually sentenced to twenty (20) years incarceration within the Florida Department of Corrections. (S: 20); (R: 68-79). A timely notice of appeal was filed. (R: 82). This appeal follows.
SUMMARY OF THE ARGUMENT
Ground I – XXXXXXXXXX should be retried because the trial court committed reversible error in instructing the jury as to XXXXXXXXXX’s trial defense of self-defense. The trial court committed reversible error in instructing the jury as to the forcible felony instruction when it submitted a circular and confusing instruction to the jury which effectively negated XXXXXXXXXX’s defense. The trial court submitted this instruction to the jury notwithstanding the objection of XXXXXXXXXX’s defense attorney.
Ground II – XXXXXXXXXX should be retried because the trial court committed fundamental error in instructing the jury as to XXXXXXXXXX’s trial defense of self-defense. The trial court committed fundamental error in instructing the jury as to the forcible felony instruction when it submitted a circular and confusing instruction to the jury which effectively negated XXXXXXXXXX’s defense. Should this court find that defense counsel’s objection was insufficient; XXXXXXXXXX argues that the instruction created and submitted by the trial court constituted fundamental error.
Ground III – XXXXXXXXXX should be retried because the trial court abused its discretion in allowing the State to introduce evidence of XXXXXXXXXX’s prior bad acts in violation of Section 90.404(2), Florida Statutes.
Ground IV – XXXXXXXXXX should be retried because, during closing arguments, the State committed fundamental error in arguing an impermissible and unsupported fact which was intended to destroy the defendant’s character in the eyes of the jury.
GROUND I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY AS TO THE FORCIBLE FELONY EXCEPTION TO SELF-DEFENSE WHERE XXXXXXXXXX WAS CHARGED WITH THREE OFFENSES ARISING FROM THE SAME INCIDENT AND HE CLAIMED SELF-DEFENSE AS TO EACH CHARGE.
The test for reversible error as to jury instructions is whether it would be reasonable to conclude that the instruction misled the jury. Mogavero v. State, 744 So. 2d 1048 (Fla. 4th DCA 1999). Specifically with regard to self-defense; jury instruction issues more closely resemble issues of law which are reviewed de novo. Connor v. State, 803 So. 2d 598 (Fla. 2001); Davis v. State, 922 So. 2d 438 (Fla. 5th DCA 2006);Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1st DCA 1982); Gardner v. State, 480 So. 2d 91 (Fla. 1985).
By means of a Second Amended Information Mr. XXXXXXXXXX was charged with three criminal offenses: a) Aggravated Assault with a Firearm; b) Aggravated Battery with a Firearm and c) Child Abuse. (R: 3). All three of the charged offenses were alleged to have taken place during the confrontation which occurred at XXXXXXXXXX’s home when DCF employee XXXXXXXXXX arrived unannounced with the intention of removing K.P. from the custody of Mr. XXXXXXXXXX and his wife. (R: 3; 5); (JTI: 37-41; 46-47; 110-121); (JTII: 335; 338-341; 363-364). Ms. XXXXXXXXXX testified that the confrontation took place in the span of three minutes. (JTI: 151).
XXXXXXXXXX claimed self-defense as to all three offenses – XXXXXXXXXX claimed that he used non-deadly force in defense of his child K.P. who was being removed from his home by XXXXXXXXXX. (R: 31-32; 34-36; 37-39); (JTI: 167-169); (JTII: 261; 293-302; 305; 314; 321; 323; 339; 349-350; 352; 355-356).
The trial court proposed instructing the jury as to the forcible felony instruction:
We’re at the part where it says, give only if defendant is charged with an independent forcible felony. And it cites the Giles[1] case. Do you see that? I think that section would be applicable and that the independent forcible felony would be the aggravated battery.
(JTII: 298).
Defense counsel argued that this section of the instruction was inapplicable
because the alleged offense occurred inside Mr. XXXXXXXXXX’s home. (JTII: 98). The trial court asked defense counsel if he had any other argument as to that point. Defense counsel responded: “[n]o, only that I do not believe that applies in these circumstances.” (JTII: 298). The trial court inquired if there was a basis for defense counsel’s position other than the fact that the alleged offense occurred inside Mr. XXXXXXXXXX’s home. Defense counsel responded: “No, because he is not trying to commit a crime, he is trying to get his child back. And I don’t, you know – -“ (JTII: 299). The trial court cut defense counsel short and advised that he was arguing a jury issue. (JTII: 299). The trial court then stated its basis for including the forcible felony instruction:
…This section is generally applicable, but they caution you that if the defendant’s only charged with one crime, it should not be given. And I’m familiar with that Giles case and that’s spelled G-I-L-E-S. Do you believe that section should be included, [asking the State]?
(JTII: 299).
The jury was instructed as to the forcible felony instruction on all three counts. (R: 31-32; 34-36; 37-39); (JTII: 314; 320; 323). The jury, after closing arguments, returned a guilty verdict as to all three offenses. (JTII: 368-369).
Instructing the jury as to the forcible felony instruction is an error where a defendant is charged with multiple counts arising out of one incident and the defendant claims self-defense as to each count. In Shepard v. Crosby, 916 So. 2d 861 (Fla. 4th DCA 2005) the Fourth District held that the forcible felony instruction does not apply where a defendant is charged with multiple offenses and it is claimed that the other offenses were themselves committed by the defendant in appropriate self-defense. Id. at 864. Mr. Shepard was charged as a result of a multi-faceted confrontation in which he acted violently towards several members of a biker gang in a bar parking lot. Shepard, 916 at 862. Mr. Shepard was charged with several criminal offenses and claimed self-defense as to each offense. Id. The jury in Mr. Shepard’s case was instructed regarding the forcible felony instruction in a similar manner to the instructions provided to the jury in Mr. XXXXXXXXXX’s trial. Id. at 863. The Fourth District found that Mr. Shepard’s appellate attorney was unconstitutionally ineffective for failing to raise this issue in Shepard’s direct appeal. The Fourth District explained that where a defendant claims self-defense with respect to each of several offenses, there exists no separately charged or independent forcible felony to justify the submission of the forcible felony instruction. Id. (relying on Bevan v. State, 908 So. 2d 524 (Fla. 2d DCA 2005)); see also Ruiz v. State, 900 So. 2d 733 (Fla. 4th DCA 2005) and McGahee v. State, 600 So. 2d 9, 11 (Fla. 3d DCA 1992)(Schwarts, C.J., dissenting).
Similarly, in Slattery v. State, 995 So. 2d 515 (Fla. 5th DCA 2007), the Fifth District noted that the forcible felony instruction constituted fundamental error where a defendant was charged with two criminal acts, but claimed self-defense to each act. This scenario was also encountered and convictions were reversed inJackson v. State, 935 So. 2d 107 (Fla. 4th DCA 2006).
In order for the forcible-felony instruction to apply, “…there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.” Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008). As there was no independent forcible felony at issue in Mr. XXXXXXXXXX’s case in which he did not claim self-defense; the forcible felony instruction should not have been submitted.
Mr. XXXXXXXXXX asserts that the reasoning contained in Chief Judge Schwarts’ dissent in McGahee v. State, 600 So. 2d 9 (Fla. 3d DCA 1992) best describes the appropriate scenario in which a jury may be instructed as to the forcible felony exception to a self-defense claim:
But the statute[2] applies only when the person claiming self-defense is engaged in another, independent“forcible felony” at the time. Thus an armed robber cannot claim that he shot the intended victim in justifiably defending himself from an armed attack by the victim himself. Section 776.041(1) plainly doesnot apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.
McGahee, 600 So. 2d at 11. (internal citations omitted).
The objected-to instruction in Mr. XXXXXXXXXX’s case was confusing and circular. When the jurors retired to deliberate in Mr. XXXXXXXXXX’s case they were in possession of jury instructions which informed them that Mr. XXXXXXXXXX’s claim of self-defense was unavailable if he were committing the very acts with which he was charged. (R: 31-32; 34-36; 37-39). Therefore, after defense counsel argued extensively that Mr. XXXXXXXXXX was justified in acting in defense of others in using non-deadly force; the jury retired with instructions that indicated Mr. XXXXXXXXXX did not have a viable legal defense. The instruction as given amounted to a directed verdict as to Mr. XXXXXXXXXX’s use of self-defense. XXXXXXXXXX argues that the instructions misled the jury and that he should be retried.
GROUND II
THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY INSTRUCTING THE JURY AS TO THE FORCIBLE FELONY EXCEPTION TO SELF-DEFENSE WHERE XXXXXXXXXX WAS CHARGED WITH THREE OFFENSES ARISING FROM THE SAME INCIDENT AND HE CLAIMED SELF-DEFENSE AS TO EACH CHARGE.
Numerous cases held that providing the jury with an erroneous forcible felony instruction constituted fundamental error. Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003); Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); Newcomb v. State, 913 So. 2d 1293 (Fla. 2d DCA 2005); Craven v. State, 908 So. 2d 523 (Fla. 4th DCA 2005).
In Martinez v. State, 981 So. 2d 449 (Fla. 2008), the Florida Supreme Court for the first time explicitly stated that submitting the forcible felony instruction erroneously is not per se fundamental error and that the error is subject to the contemporaneous objection rule in certain scenarios. The Florida Supreme Court concluded that the erroneous forcible felony instruction submitted to the jury in Mr. Martinez’ case was not fundamental error for two reasons: a) the erroneous instruction did not deprive Mr. Martinez of his sole, or even his primary, defense strategy, and b) the evidence supporting Mr. Martinez’s claim of self-defense was extremely weak. The Martinez opinion held that the erroneous reading of the forcible felony instruction constitutes fundamental error when it deprives the defendant of a fair trial. Id. at 457.
Mr. XXXXXXXXXX re-incorporates Ground I herein by reference. Mr. XXXXXXXXXX argues that, if this court finds that defense counsel’s objection to the forcible felony instruction was insufficient; the erroneous instruction constituted fundamental error based on the facts of his case.
XXXXXXXXXX’s primary defense strategy
Throughout the course of the trial Mr. XXXXXXXXXX argued that he had acted in self-defense. Prior to trial the State acknowledged that Mr. XXXXXXXXXX was going to admit to acting violently and put forth a defense. (JTI: 10). Defense counsel argued in opening statement that Mr. XXXXXXXXXX was acting in defense of his child. (JTI: 44-46). Defense counsel, in opening, admitted that Mr. XXXXXXXXXX pointed his firearm and kicked-in the door to his home. Defense counsel admitted that Mr. XXXXXXXXXX reached for the child and that XXXXXXXXXX fell to the ground. (JTI: 46-47). Defense counsel argued that XXXXXXXXXX was a trespasser in the XXXXXXXXXX home and that Mr. XXXXXXXXXX was trying to protect his family from her intrusion. (JTI: 47-48). Defense counsel argued in opening that the jurors would find Mr. XXXXXXXXXX had a legitimate right to defend his child and his home from XXXXXXXXXX’ intrusion. (JTI: 48).
During the State’s case-in-chief the attorneys and the trial court were arguing about an evidentiary issue when the State confirmed: “…the defense in this case is that Ms. XXXXXXXXXX created this situation.” (JTI: 87). The trial court agreed: “…the apparent defense in the case is that Ms. XXXXXXXXXX didn’t have the authority to be there or take the child and that the defendant was only defending his child.” (JTI: 89).
When the trial broke for lunch the court addressed the two attorneys regarding jury instructions. (JTI: 167). Defense counsel specifically informed the court that he was going to be asking for self-defense instructions. (JTI: 167-169).
After presenting its case-in-chief the State rested. (JTII: 260). The trial court inquired of defense counsel as to self-defense and defense counsel again told the trial court that self-defense was his argument. (JTII: 261). Defense counsel then called a DCF witness to testify as to the justification XXXXXXXXXX claimed to have possessed for being present in Mr. XXXXXXXXXX’s home on the day of the confrontation. (JTII: 263-267). Defense counsel called an eyewitness to the confrontation and elicited testimony that XXXXXXXXXX was acting in a hostile manner at the home prior to Mr. XXXXXXXXXX’s violent acts. (JTII: 276-277; 283).
After the defense rested, defense counsel argued with the Circuit Court and the State as to his requested self-defense instructions. (JTII: 293-302). The State eventually informed the trial court that it had no objection to the submission of a self-defense instruction on all three counts. (JTII: 305). The jury was instructed on self-defense as to all three counts for which XXXXXXXXXX was on trial. (JTII: 314; 321; 323).
The State understood Mr. XXXXXXXXXX’s self-defense claim and argued against it during closing argument. (JTII: 339). Finally, defense counsel argued extensively during his closing argument that Mr. XXXXXXXXXX’s actions were non-criminal based on his self-defense claim. (JTII: 349-350)(“She went in without permission. She is a trespasser. She is entering, just like the self-defense instruction talks about, Mr. XXXXXXXXXX has no duty to retreat in his own house.”); (JTII: 352)(“…because he is running into the house, he has the self-defense.”)(JTII: 355-356).
Mr. XXXXXXXXXX acknowledges that defense counsel questioned the accuracy of XXXXXXXXXX’ account of the confrontation. Mr. XXXXXXXXXX acknowledges that defense counsel called witnesses who contradicted XXXXXXXXXX’ version of events. However Mr. XXXXXXXXXX argues that it is apparent upon examining the record in this case that self-defense was his primary defense strategy.
evidence supported mr. XXXXXXXXXX’s self-defense claim
The evidence brought forth at trial supported Mr. XXXXXXXXXX’s claim of self-defense. XXXXXXXXXX testified directly that she lied to Mr. XXXXXXXXXX and told him that he could not be in contact with his child, K.P. XXXXXXXXXX’ own testimony confirmed that she had no legal authority to take this action. (JTI: 81-82). XXXXXXXXXX’ testimony confirmed that she decided to take K.P. away from Mr. XXXXXXXXXX and his wife because Mr. XXXXXXXXXX had violated the unsupported order which she gave him in directing he have no contact with his own child. (JTI: 98).
On the day of the confrontation XXXXXXXXXX arrived at Mr. XXXXXXXXXX’s home without a law enforcement escort (JTI: 102), without a court order (JTI: 100) and without even a car seat (JT: 143). On the day of the confrontation XXXXXXXXXX arrived at Mr. XXXXXXXXXX’s home without any documentation which purported to establish her authority to take K.P. from the custody of his parents. (JTI: 143). This was uncontested by way of XXXXXXXXXX’ own testimony.
It is uncontested that, when XXXXXXXXXX arrived at Mr. XXXXXXXXXX’s home there was no emergency taking place. (JTI: 139-140). It is uncontested that XXXXXXXXXX arrived at Mr. XXXXXXXXXX’s home with the intent of removing K.P. from the custody of Mr. XXXXXXXXXX and his wife. (JTI: 108-109). It is uncontested that XXXXXXXXXX entered Mr. XXXXXXXXXX’s home uninvited and informed the occupants that she was there to remove K.P. (JTI: 107-109).
Florida Standard Jury Instruction 3.6(g) allows for Mr. XXXXXXXXXX to use non-deadly force if he reasonably believed that his forceful conduct was necessary to defend another against XXXXXXXXXX’ imminent use of unlawful force against that other person. Fla. Std. Jury Instr. (Crim.) 3.6(g); (R: 31; 34; 37). The use of unlawful force by XXXXXXXXXX must have appeared to Mr. XXXXXXXXXX to have been ready to take place.Id. The standard jury instruction, as read to the jury in Mr. XXXXXXXXXX’s case, allowed that Mr. XXXXXXXXXX, in his home, was presumed to have held a reasonable fear of imminent peril or death or bodily injury to another if XXXXXXXXXX had removed or attempted to remove another person against that person’s will from the residence and Mr. XXXXXXXXXX had reason to believe that had occurred. Fla. Std. Jury Instr. (Crim.) 3.6(g); (R: 35; 37). According to the standard jury instruction, an individual who unlawfully enters or attempts to enter another’s residence is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Fla. Std. Jury Instr. (Crim.) 3.6(g); (R: 35; 37). Furthermore, the jury instruction allows that Mr. XXXXXXXXXX had no duty to retreat and was free to stand his ground in order to meet force with force if he reasonably believed that it was necessary to do so in order to prevent death or great bodily harm to another or to prevent the commission of a forcible felony. Fla. Std. Jury Instr. (Crim.) 3.6(g); (R: 35; 37).
Mr. XXXXXXXXXX argues that when XXXXXXXXXX walked into his home with the announced intention of removing his child that, pursuant to Florida law, he presumptively held a reasonable fear of imminent peril or death or bodily injury to K.P. The record established in this case that XXXXXXXXXX entered the XXXXXXXXXX home without any documentation or other readily apparent authority. (JTI: 143). When XXXXXXXXXX entered his home uninvited and announced her intention of taking K.P. (JTI: 107-109) the use of force by XXXXXXXXXX appeared to Mr. XXXXXXXXXX to have been ready to take place. When XXXXXXXXXX entered Mr. XXXXXXXXXX’s home uninvited, without apparent authority, and announced her intention of taking K.P., she was presumed to be doing so with the intent to commit an unlawful act involving force of violence.
The facts involved in this case dovetail smoothly into Florida’s self-defense instruction as well as the statutory language from which the instruction springs.
This case is unlike Martinez v. State, 981 So. 2d 449 (Fla. 2008) where a female victim was stabbed in the back and Mr. Martinez claimed self-defense with no remarkable bodily injury to his person. In addition to self-defense Mr. Martinez forwarded several further theories of defense to his jury including intoxication, lack of premeditation, accident, and that the victim’s wounds were self-inflicted. Id. at 451. Those additional theories of defense are absent from Mr. XXXXXXXXXX’s trial.
As noted in the Martinez decision, the erroneous reading of the forcible felony instruction constitutes fundamental error when it deprives the defendant of a fair trial. Martinez, 981 So. 2d at 457. In Mr. XXXXXXXXXX’s trial the reading of the forcible felony instruction amounted to a directed verdict on Mr. XXXXXXXXXX’s primary defense. Additionally, Mr. XXXXXXXXXX’s self-defense claim was not dubious and fit within the language of the self-defense jury instruction to a remarkable degree. Because of these factors Mr. XXXXXXXXXX submits that the reading of the forcible felony instruction in his case amounted to fundamental error. Mr. XXXXXXXXXX submits that he should be retried.
GROUND III
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF MR. XXXXXXXXXX’S ALLEGED PRIOR BAD ACTS WHERE THE EVIDENCE OF BAD ACTS WAS NEVER CLEARLY PROVEN AND WAS INTRODUCED TO ESTABLISH XXXXXXXXXX’S BAD CHARACTER AND PROPENSITY FOR VIOLENCE.
The admission of prior bad act evidence is a matter within the trial court’s discretion, subject to the provisions of Section 90.404(2), Florida Statutes, and the decision in Williams v. State, 110 So. 2d 654 (Fla. 1959). A trial court’s decision to admit such evidence is reviewed under an abuse of discretion standard. White v. State, 817 So. 2d 799 (Fla. 2003); Zack v. State, 753 So. 2d 9, 16 (Fla. 2000). A trial court’s discretion however is limited by the rules of evidence as well as the principles of stare decisis.Salazar v. State, 991 So. 2d 364 (Fla. 2008); McDuffie v. State, 970 So. 2d 312 (Fla. 2007); Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003). McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006)(noting that a trial court’s discretion is limited by the evidence code and applicable case law and that “[a] court’s erroneous interpretation of these authorities is subject to de novo review”).
It is improper for a jury to base a verdict on the conclusion that, because the defendant is of bad character or has a propensity to commit crimes, he therefore probably committed the crime charged. See Espinosa v. State, 589 So. 2d 887 (Fla. 1991). This principle specifically holds true in cases involving violent offenses where the State introduces evidence of prior violent acts. Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997);Holland v. State, 636 So. 2d 1289 (Fla. 1994); Bolden v. State, 543 So. 2d 423 (Fla. 5th DCA 1989); King v. State, 545 So. 2d 375 (Fla. 4th DCA 1989); Pratt v. State, 1 So. 3d 1169 (Fla. 4th DCA 2009).
XXXXXXXXXX, an employee at the Florida Department of Children and Families, became involved with Mr. XXXXXXXXXX and his family after Mrs. XXXXXXXXXX went to the emergency room on June 24, 2008. (JTI: 68; 70). The record is unclear as to why XXXXXXXXXX went to the emergency room on June 24, 2008. The trial court never required the state establish what occurred. Before allowing Williams Rule evidence to be presented to the jury, the trial court must find that the State has proved that the defendant committed the collateral acts by clear and convincing evidence. McLean v. State, 934 So. 2d 1248, 1256 (Fla. 2006)(citing State v. Norris, 168 So. 2d 541, 543 (Fla. 1964)). There was an indication in the record however that XXXXXXXXXX had a black eye. (JTI: 22).
Apparently, at other times during the course of the relationship, XXXXXXXXXX sought and/or obtained injunctions against Mr. XXXXXXXXXX. (JTI: 8; 10-14; 50; 62). Specifically the record indicates that XXXXXXXXXX had sought and/or obtained injunctions against Mr. XXXXXXXXXX the week before his arrest in July of 2008 (JTI: 50) as well as after his arrest while his criminal charges were pending. (JTI: 10-14; 62).
Prior to trial, defense counsel sought to limit evidence as to other alleged acts of violence between Mr. XXXXXXXXXX and his wife. (R: 25); (JTI: 19-24). The State failed to comply with the statutory ten day requirement and never gave notice to Mr. XXXXXXXXXX that it intended to introduce other bad acts in this case. (R: 25). XXXXXXXXXX was not a victim of any offense at issue in the trial. (R: 3). This was a distinction that had to be noted by the defense more than once. (R: 25); (JTI: 16; 19-24; 70). The trial court reserved ruling on the motion in limine; the State indicated it understood the ruling. (JTI: 22-24).
The very first witness called by the State testified that XXXXXXXXXX had sought and/or obtained an injunction against Mr. XXXXXXXXXX the week prior to his arrest. (JTI: 50-51).
On cross examination the defense asked the witness about her bias towards Mr. XXXXXXXXXX (Mr. XXXXXXXXXX was the son-in-law of the witness). (JTI: 60-61). The State, on redirect, specifically and pointedly asked leading questions of the witness through which the prosecutor testified as to multiple bad acts on Mr. XXXXXXXXXX’s part which are wholly unrelated to this case. (JTI: 61-63).
Q: And you have knowledge that there have been several injunctions that have been taken out by your daughter, involving herself and the defendant in this case, XXXXXXXXXX?
MR. XXXXXXXXXX: Objection. Objection, again, Your Honor.
THE WITNESS: Yes.
THE COURT: I’m going to overrule the objection.
Q: One as recent as the beginning of this month, is that not correct?
A: Yes.
Q: Did your daughter go recently to file an injunction because the defendant in this case called her and told her when she filed for divorce that he was going to kill her family?
A: Yes.
Q: And that’s what got us the injunction that’s in place now?
A: Yes.
MR. XXXXXXXXXX: Your Honor, again, I would object as we are having a trial within a trial.
THE COURT: All right, I’m going to overrule the objection.
(JTI: 62-63).
During the State’s redirect examination of Mr. XXXXXXXXXX’s mother-in-law the assistant state attorney testified by way of leading questions to the following unsubstantiated facts; a) that Mr. XXXXXXXXXX “has beaten” XXXXXXXXXX, b) that XXXXXXXXXX ended up in the emergency room, c) that Mr. XXXXXXXXXX provided sub-par treatment to his own children, d) that XXXXXXXXXX had taken out several injunctions against Mr. XXXXXXXXXX and e) that Mr. XXXXXXXXXX threatened to kill XXXXXXXXXX’s family. (JTI: 61-63). All of this extraneous, pejorative information came to light in front of the jury despite defense counsel’s repeated objections.
During the testimony of the second witness the jury learned that it was alleged that Mr. XXXXXXXXXX had used a knife in a violent act at some point. No incident involving a knife was supported by clear and convincing evidence. This testimony brought further defense objection. (JTII: 85-88).
During the testimony of the fourth witness in the trial the State asked about an injunction. (JTII: 209).
XXXXXXXXXX was eventually called as a witness and the State asked her whether or not she was injured when she went to the emergency room. (JTII: 233). The State then asked XXXXXXXXXX about her injunction against Mr. XXXXXXXXXX. (JTII: 235-238).
None of the elicited bad acts were relevant to Mr. XXXXXXXXXX’s prosecution. Mr. XXXXXXXXXX was not charged with any offense in which XXXXXXXXXX was a victim. (R: 3). It may be debatable that prior bad acts on Mr. XXXXXXXXXX’s part properly went to XXXXXXXXXX’ authority to act on the day she confronted Mr. XXXXXXXXXX. If that were the purpose of introducing the prior bad acts one would expect those facts to come in during rebuttal and not the State’s case-in-chief. Pratt v. State, 1 So. 3d 1169 (Fla. 4th DCA 2009).
Certainly other injunctions requested and/or received by XXXXXXXXXX following Mr. XXXXXXXXXX’s arrest were irrelevant to the material facts in this criminal case. The record in this case shows that the assistant state attorney had a low opinion of Mr. XXXXXXXXXX from the outset. (JTI: 9-12)(“I’m just afraid that during the trial if he gets upset, he might do something” “But I think he is dangerous” “What if he gets upset during the proceedings and decides to go off and hurt someone?”); (JTII: 17)(“…he’s tried to kill himself, you know. He might decide, God forbid, to take someone out with him, like maybe a DCF worker, I don’t know.”).
XXXXXXXXXX submits that the assigned assistant state attorney went to great lengths to make sure that the jury in his case was told of prior bad acts (injunctions, domestic violence, death threats, the use of a knife) which had no bearing on the facts of his case. The assigned assistant state attorney fully revealed her intentions by heaping unsubstantiated slime upon Mr. XXXXXXXXXX in closing argument when she told the jury that DCF had taken another child away from Mr. XXXXXXXXXX at some other point in time. (JTII: 363).
Throughout the course of the trial the State made sure the jurors were spectators to a morbid theater in which the State mentioned prior threats/injunctions/violence/weapons and forced defense counsel to object. The trial court never required the State to establish what prior bad acts, if any, Mr. XXXXXXXXXX actually committed. There was an indication in the record that XXXXXXXXXX went to the emergency room with merely a black eye. (JTI: 22). However the jury heard indications that Mr. XXXXXXXXXX used a knife in some manner, that he had threatened to kill his wife’s family after he was arrested in this case, that he was a respondent in several injunction actions and that he had mistreated his children. One factor that made the repeated testimony about injunctions particularly harmful was that there was no injunction pending on Mr. XXXXXXXXXX the day the confrontation took place. (R: 8; 51-52). What took place was a violation of the law on introducing prior bad acts. McLean v. State, 934 So. 2d 1248, 1256 (Fla. 2006)(citing State v. Norris, 168 So. 2d 541, 543 (Fla. 1964)). Defense counsel filed a motion in limine in order to try and prevent this scenario. (R: 25). Eventually the trial court granted defense counsel a continuing objection on the issue. (JTII: 238). Defense counsel filed a motion for new trial in which he again argued this issue. (R: 51-52).
As the prior bad act evidence was highly inflammatory/prejudicial, as it was introduced to establish XXXXXXXXXX’s propensity for violent criminal conduct, and as it was introduced in non-compliance with Section 90.404(2), Florida Statutes, XXXXXXXXXX submits that he was prejudiced and that retrial is appropriate.
GROUND IV
THE STATE COMMITTED FUNDAMENTAL ERROR IN CLOSING ARGUMENT BY MAKING AN IMPERMISSIBLE AND UNSUPPORTED ASSAULT ON THE DEFENDANT’S CHARACTER.
As a general rule, “failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review.” Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000); see also Poole v. State, 997 So. 2d 382, 390 (Fla. 2008). The exception to this general rule is where the unpreserved comments rise to the level of fundamental error, which the Florida Supreme Court has 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, 762 So. 2d at 899 (quoting McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999)).
“[T]here are situations where the comments of the prosecutor so deeply implant seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction.” Paite v. State, 112 So. 2d 380, 384 (Fla. 1959) “[H]ighly prejudicial and inflammatory remarks require reversal unless the appellate court can determine from the record that the improper statements did not prejudice the defendant”. Rahmings v. State, 425 So. 2d 1217, 1217 (Fla. 2nd DCA 1983) “[U]nless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the judgment must be reversed”. Chavez v. State, 215 So. 2d 750, 750 (Fla. 2nd DCA 1968) (quoting Paite, 112 So. 2d at 385)).
At the conclusion of Mr. XXXXXXXXXX’s trial, during closing argument, the State told the jurors that DCF had taken another child away from Mr. XXXXXXXXXX and his wife at some previous point in time. (JTII: 363)(“They had already lost one child to DCF. That came out in the testimony.”). There is absolutely no record material which supports the assertion that Mr. XXXXXXXXXX and XXXXXXXXXX had previously “lost” a different child to DCF on the day of the confrontation.
Argument on matters outside the evidence is improper. Pope v. Wainwright, 496 So. 2d 798, 803 (Fla. 1986); Barnes v. State, 58 So. 2d 157, 159 (Fla. 1951). “A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing the evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence.” Ruiz v. State, 743 So. 2d 1, 4 (Fla. 1999). The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it 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. Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985).
Attorneys must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) (citing Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993); Wilson v. State, 798 So. 2d 836 (Fla. 3d DCA 2001).
Mentioning derogatory and inflammatory issues which are outside the scope of what is necessary to support the elements of a charged offense is fundamental error. Stephenson v. State, ___ So. 3d ___, 35 Fla. L. Weekly D 512 (Fla. 3d DCA 3/3/2010)(mention that defendant contemplated an abortion requires reversal as fundamental error).
The termination of one’s parental rights embodies a deep personal failure which caries with it a well-recognized social stigma. Lassiter v. Dept. of Social Services of Durham Co., NC, 452 U.S. 18, 27 (1981);In the Matter of A.K., 628 S.E. 2d 753 (N.C. 2006). Recognizing this stigma the Florida Legislature has closed termination of parental rights proceedings to the public. Fla. Stat. § 39.809(4). Termination of parental rights necessarily entails a state determination that the parents are unfit to raise their own children.
Mr. XXXXXXXXXX submits that the State, in arguing this unsupported and viciously pejorative fact to the jury, committed fundamental error and that he should be retried.
CONCLUSION
WHEREFORE, the Appellant/Defendant respectfully requests this Honorable Court reverse his judgment and sentence and remand this cause to the Circuit Court with instructions that he be tried anew.
Respectfully submitted,
______________________
Luke Newman
Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
Phone: 850.224.4444
Fax: 850.224.9335
lukenewmanlaw@hotmail.com
Fla. Bar No. 0859281
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on the twelfth (12th) day of XXXXX, 20XX a copy of the foregoing was furnished via First Class US Mail to:
Criminal Appeals Division
Office of the Attorney General
The Florida Capitol
Tallahassee, FL 32399-1050
_____________________________
Luke Newman
Fla. Bar No.: 0859281
CERTIFICATE OF COMPLIANCE REGARDING FONT SIZE
Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.
_____________________________
Luke Newman
Fla. Bar No.: 0859281
[1] Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002) is cited in Fla. Std. Jury Instr. (Crim.) 3.6(g).
[2] Referring to Fla. Stat. § 776.041, the statutory basis of the forcible felony instruction language.
