Perry v. StatePerry v. State
Appellant challenges his convictions for one count of capital sexual battery, two counts of lewd and lascivious assault on а child under the age of 16, and one count of the lesser included offense of misdemeanor battery. Appellant claims the state made the Williams rule evidence a feature оf the trial, and that improper comments by the prosecutor in his closing argument served to deny him a fair trial. Upon a thorough review of the record, we find no reversible or fundamental error and therefore affirm.
The victim, K.B., testified that when she was between the ages of five and 10, while alone with appellant, her uncle, he would stand her on a bed, remove her clothing and fondle her vagina until it hurt, progressing to vaginal intercourse. Additionally, the state presented testimony from three additional witnesses, portions of which pertained to uncharged acts. Their testimony as to the collateral uncharged acts included the following: 1) C.D.N., mother of K.B. and a sister of
Appellant argues that the state made the Williams rule evidence a feature of the trial both by extensive Williams rule testimony and by repeated references to such in closing arguments. We do not agree. During the trial, it was nоt until the prosecutor mentioned the collateral testimony in his initial closing argument that appellant objected and moved for mistrial for the first time on grounds the Williams rule evidence hаd become a feature of the trial. Referring to the written order on the motion in limine which directed that the state not make such evidence a focal point of the trial, appellant argued that “he has done that now. He has violated that order.” The prosecutor responded that was the first time he had mentioned it in his argument. The court denied the mоtion for mistrial, but expressed its concern and cautioned the prosecutor not to persist. In his motion for new trial, appellant made this same argument that the prosecutоr had made the collateral evidence a feature of the trial in his closing argument, which the trial court denied.
The prosecutor‘s reference to the collaterаl evidence appears on one page of the transcript of the prosecutor‘s 22-page initial closing argument, where he simply pointed out the similarities of the charged and uncharged acts, and asked the rhetorical question why these women would come in and say such things, putting themselves at odds with their own mother, who had testified for the defense that she knew of no abuse by appellant. This comment was consistent with the proper use for collateral testimony to corroborate the victim‘s testimony and was a proрer comment on the defense‘s contentions that these women were out to get appellant. See, e.g., Snowden v. State, 537 So.2d 1383 (Fla. 3d DCA 1989). Heeding the warning given by the trial court, the prosecutor never made reference again to the collateral evidence in his initial closing arguments and did not mention such in his final closing argument. Under these circumstances, we conclude the proseсutor did not make the Williams rule evidence a feature of the trial in his closing argument. Cf. Bush v. State, 690 So.2d 670 (Fla. 1st DCA 1997) (prosecutor‘s closing argument focused on all of the items stolen, rather than just the items listed in the theft сharge, and gave a detailed list of the numerous items stolen from the collateral victims); Turtle v. State, 600 So.2d 1214 (Fla. 1st DCA 1992) (prosecutor‘s closing argument repeatedly referred to collateral incidеnts, and advised on at least four occasions that the collateral victim was “important in this case“).
As above noted, although appellant‘s argument that the state made thе
Appellant‘s remaining argument asserts as еrror comments made by the prosecutor in his closing arguments. Comments not properly preserved by contemporaneous objection and accompanying motion for mistrial are procedurally barred unless they constitute fundamental error. See, e.g., Chandler v. State, 702 So.2d 186 (Fla.1997). We conclude that none of the comments pointed to by appellant rise to the level required for reversible error, much less fundamental error. As for the adequately preserved comments alleged to be improper, the supreme court has held that in order for such сomments to merit a new trial,
the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the convictions, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.
Voorhees v. State, 699 So.2d 602, 614 (Fla. 1997). None of the comments сhallenged meets these requirements. It is well-established that prosecutorial comments, such as using the word “lie,” when commenting on appellant‘s testimony, or characterizing the words of appellant as not those of an “innocent man” when commenting on appellant‘s verbal statement to an investigating police officer as set forth in testimony by that оfficer and other eyewitnesses, and not denied by appellant on the stand, are not improper. See, e.g., Davis v. State, 698 So.2d 1182, 1190 (Fla.1997); Craig v. State, 510 So.2d 857, 865 (Fla.1987) (“When counsel refers to a witness or a defendant as being a `liar,\’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.“), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988).
AFFIRMED.
MINER and WEBSTER, JJ., and SMITH, LARRY G., Senior Judge, concur.