Scott v. State
218 So. 3d 476
| Fla. Dist. Ct. App. | 2017Background
- Defendant Jeff Scott convicted of three counts of sexual activity with a child by a person in familial or custodial authority (first-degree felonies).
- At trial the child-victim C.S. briefly testified she attempted suicide as a result of the abuse.
- Child Protection Team counselor Annette Treto recommended therapy (Kristi House) after interviewing C.S. and advised DCF investigate family safety.
- Prosecutor’s rebuttal closing urged the jury to “do justice” for C.S. and to “be her voice,” appealing to victim-focused sympathy.
- Defendant did not object at trial to the suicide testimony, Treto’s recommendation, or the closing remarks; raises those claims on appeal and alternatively alleges ineffective assistance of counsel.
- The court reviews unpreserved claims for fundamental error and rejects both fundamental-error and direct-appeal ineffective-assistance claims on the face of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of victim’s testimony about suicide attempt | State: testimony was relevant as post-abuse behavioral evidence | Scott: testimony was unfairly prejudicial and probative value was outweighed | Court: testimony was relevant and not unduly prejudicial; no fundamental error |
| Expert/counselor recommendation for therapy | State: Treto’s recommendation was routine and not a credibility vouch | Scott: recommendation improperly suggested expert believed victim, bolstering credibility | Court: Treto did not vouch for truth; cross-exam clarified limits; no error/fundamental error |
| Prosecutor’s sympathy-based closing argument | State: (implicitly) proper advocacy | Scott: appeal to jury sympathy was improper and prejudicial | Court: statements condemned as improper but isolated; not fundamental error; caution to prosecutors |
| Ineffective assistance of counsel for failing to object | Scott: counsel’s failure to object was ineffective | State: record does not show obvious ineffectiveness or prejudice | Held: claims not cognizable on direct appeal; no obvious ineffectiveness on record |
Key Cases Cited
- Cardona v. State, 185 So. 3d 514 (Fla. 2016) (closing-argument victim-justice appeals condemned)
- McDonald v. State, 743 So. 2d 501 (Fla. 1999) (definition of fundamental error)
- J.B. v. State, 705 So. 2d 1376 (Fla. 1998) (fundamental error standard)
- Petruschke v. State, 125 So. 3d 274 (Fla. 4th DCA 2013) (post-abuse behavioral evidence probative)
- Elysee v. State, 920 So. 2d 1205 (Fla. 4th DCA 2006) (victim behavior after alleged abuse is relevant)
- Ramayo v. State, 132 So. 3d 1224 (Fla. 3d DCA 2014) (improper for expert to vouch for victim’s truthfulness)
- Geissler v. State, 90 So. 3d 941 (Fla. 2d DCA 2012) (expert testimony may improperly suggest belief in child’s account)
- Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007) (fundamental error in closing argument requires pervasive prejudice)
- Chandler v. State, 702 So. 2d 186 (Fla. 1997) (improper prosecutor comments may be thoughtless but not necessarily fundamentally prejudicial)
- Johnson v. State, 40 So. 3d 883 (Fla. 4th DCA 2010) (suicide-attempt testimony can be minimally probative and prejudicial in some circumstances)
- Aho v. State, 393 So. 2d 30 (Fla. 2d DCA 1981) (investigating officer’s hearsay about suicide attempt improper)
- Cephus v. State, 52 So. 3d 46 (Fla. 3d DCA 2010) (ineffective-assistance claims usually not cognizable on direct appeal)
- Moore v. State, 820 So. 2d 199 (Fla. 2002) (isolated improper prosecutor comments insufficient to show ineffective assistance on direct appeal)