County
Criminal Court: CRIMINAL LAW –
Jury Trial/Evidence - admission of prior bad acts – anticipatory
rehabilitation – admission of statement that appellant was on house arrest
or probation – improper closing argument – trial court erred in admitting
evidence – no error to admit uncharged conduct occurring at time of instant
offense under inextricably intertwined theory – error to admit prior battery
offense under theory of anticipatory rehabilitation – State exceeded parameters
of anticipatory rehabilitation – improper to admit evidence that appellant
was on probation – State’s inflammatory comments during closing arguments
were improper as they invited jury to make a finding of guilty for reason
other than evidence presented – Conviction reversed; case remanded for new
trial. Wolfe v. State, No. 01-09319 (
IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF
IN AND
APPELLATE
DIVISION
MARK
WOLFE,
Appellant,
vs.
APPEAL NO:
CRC01-19319CFANO
STATE
OF
Appellee.
/
Opinion filed April _____, 2003.
Appeal from a decision of the
County
Court for
Amy M. Williams, Judge.
Joy K. Goodyear, Esquire
Assistant Public Defender.
C. Marie King, Esquire
Assistant State Attorney.
ORDER
AND OPINION
In the lower court, Wolfe was convicted by jury verdict of battery against his ex-wife. He was sentenced to one year probation with 60 days county jail as a condition of that probation, to be served on work-release. On appeal, he raises three issues. First, he asserts that the trial court erred in permitting the State to introduce evidence of an uncharged attempted sexual battery (i.e., events surrounding the charged battery), as well as evidence of an alleged prior aggravated battery offense in 1992. Second, he maintains that the trial court erred in permitting the State to elicit testimony which indicated that he was on probation or house arrest at the time he allegedly committed the aggravated battery offense in 1992. Finally, he argues that the trial court erred in denying his motion for new trial based on the prosecutor’s improper closing arguments. Because the acts constituting Wolfe’s alleged prior aggravated battery offense in 1992 were irrelevant, because they were introduced at trial in graphic detail, and because they became a feature of the trial, we reverse and remand.
Uncharged
Attempted Sexual
The
uncharged attempted sexual battery allegedly occurred at or about the time
of the charged battery. The trial court,
on motion in limine, permitted the State to introduce this bad act evidence
as inextricably intertwined evidence, provided terms such as “rape” and “sexual
battery” were not used. Based on our
review of the motion in limine hearing as well as the testimony from trial,
we find no error in the trial court’s ruling on the uncharged attempted sexual
battery. Evidence
of an uncharged crime is inextricably intertwined with the charged offense,
and therefore admissible independent of the provisions of section 90.404(2)(a)
and (b), Florida Statutes, “where it is impossible to give a complete or intelligent
account of the crime charged without referring to the other crime.” Simmons v. State, 790 So. 2d 1177, 1178
n.2 (
Alleged Prior Aggravated
The record reflects that in CRC92-06779CFANO, Wolfe, on April 30, 1992, was arrested and charged with aggravated domestic battery based on allegations made by his then-current wife. Subsequently, Wolfe’s wife came forward before the information was filed and claimed that she fabricated the charge. On June 17, 1992, the State no filed the case against Wolfe. On July 23, 1992, the State charged Wolfe’s wife with filing a false police report. According to the briefs and the State’s argument at the motion in limine hearing, Wolfe’s wife came forward and said she fabricated the charge because she knew that she would only receive a fine, whereas her husband, who was on probation or house arrest at the time for another crime, would have “gotten into more trouble.”
The motion in limine hearing conducted October 30, 2001 concerned two issues: the admissibility of the alleged prior aggravated battery offense from 1992, and any mention that Wolfe was on probation or house arrest at the time that offense was allegedly committed. In arguing their respective positions on each issue, the public defender vehemently objected to any mention that Wolfe was on probation or house arrest. He vacillated on the extent to which he would be cross-examining Wolfe’s ex-wife about her prior conviction for filing a false police report. The State maintained that it was necessary for Wolfe’s ex-wife to mention Wolfe’s probation, since this is why she changed her story and claimed she fabricated the charge. The State argued that it was going to engage in “anticipatory rehabilitation” on direct-examination, and would elicit all of the facts surrounding the alleged prior aggravated battery incident from 1992. At the conclusion of the hearing, the trial judge remarked, “So my ruling is going to be that if the facts of that case come in, all the facts come in.” After the trial judge announced her ruling, the State reiterated that it would elicit testimony concerning the 1992 incident in detail on direct-examination, and the public defender reaffirmed his objection to any mention that Wolfe was on probation or house arrest at the time.
At trial, the State, on direct-examination, began eliciting testimony from Wolfe’s ex-wife concerning the details of the alleged prior aggravated battery offense from 1992. The public defender promptly objected. At the ensuing bench conference, the public defender asserted that he did not want to get into the facts, and that he would just ask Wolfe’s ex-wife, on cross-examination, “You accused him of an aggravated battery?” The trial judge reaffirmed her earlier ruling, and the State continued, on direct-examination, to elicit all of the details from the 1992 incident, including graphic details of the acts constituting the alleged offense.
Specifically, after the State “refreshed” her recollection with a police report, Wolfe’s ex-wife testified that, in 1992, she was pushed, hit, shoved down on the ground, and kicked from behind when she was “on all fours.” The transcript next indicates that Wolfe’s ex-wife had difficulty in continuing her testimony. The State suggested that the court take a break, and the trial judge herself inquired if the witness needed a break. The proceedings continued. Wolfe’s ex-wife continued to testify that, in 1992, she was hit in the back of the head, that she tried to get away from him, that she tried to get out the front door but did not make it, that her jewelry was jerked off of her, and that she finally got away from him. She further testified that she called the police from a nearby convenience store, that an ambulance was needed, that she sustained injuries from the altercation including “severe bruising,” and that she had to be taken to a hospital. In sum, all of this testimony constituting the details of the alleged prior aggravated battery offense from 1992 was elicited under the umbrella of “anticipatory rehabilitation.” Evidently, the State thought it was necessary to elicit the graphic details of the alleged aggravated battery in order to “soften the blow” of the anticipated cross-examination as to her misdemeanor conviction for filing a false police report.
After reviewing the record, we find that the State far exceeded the parameters of “anticipatory rehabilitation.” [1] The purpose of anticipatory rehabilitation is to permit a witness on direct-examination to testify as to prior inconsistent statements or prior convictions to “soften the blow.” However, as noted by Ehrhardt:
Permitting counsel to bring out matters on direct examination which are damaging to the credibility of the witness is not without limits. Evidence that is admitted during anticipatory rehabilitation is subject to the 90.403 balancing test, which weights the probative value of the evidence against the danger of unfair prejudice or misleading the jury.
§ 608.2,
pg. 462,
We find that the graphic details of the acts constituting the alleged
aggravated battery should have been excluded under section 90.403. See e.g., State v. Price,
491 So. 2d 536 (
In its brief on appeal, the State cites to Lawhorne v. State,
500 So. 2d 519 (
We do not read Lawhorne, however, as a license to elicit several pages worth of irrelevant testimony concerning the acts constituting the 1992 aggravated battery, which was clearly prejudicial. The preemptive tactic of bringing out the matter on direct-examination should have been limited to the fact that Wolfe’s ex-wife previously charged Wolfe with aggravated battery, that she subsequently recanted her accusations because Wolfe would have “gotten into more trouble” than she would have, and that as a result, she was charged with filing a false police report.
The credibility of Wolfe’s ex-wife, the victim,
was clearly an important aspect of this case. It is the State’s burden to prove that the error
did not contribute to the verdict. State
v. DiGuilio, 491 So. 2d 1129 (
Moreover,
we find that the error discussed above was compounded when the jury heard
testimony that Wolfe was on probation or house arrest in 1992. Wolfe’s ex-wife testified, three times, that
Wolfe was on probation or house arrest at the time of the 1992 incident. The public defender objected to this testimony
at least twice and was overruled. We
find that it was error to permit the State to elicit any reference to Wolfe’s
probation or house arrest. Matthews
v. State, 772 So. 2d 600, 602 (
Improper Closing Argument
We find it necessary to comment on one other issue that was raised on appeal. In its closing argument, the prosecutor made the following statements: (1) “The State gets involved, however, when it’s no longer acceptable behavior. When at some point during the argument someone else sees fit to beat another person to a pulp and then makes excuses for it, that is unacceptable behavior;” (2) “And when she refused to have sex with him, he tried to pull down his pants. And when he couldn’t, he was mad. He threw her on the bed . . . .”; and (3) “But you were here. You were listening. The events happened just as this case did. In 1992, he beat his wife to a pulp.”
After
each of these comments, the public defender objected on grounds of facts not
in evidence. All three objections were
sustained. After the third comment,
the trial judge gave a curative instruction.
Because the objections were sustained, the public defender was required
to move for a mistrial in order to preserve this issue for appeal. Simpson v. State, 418 So. 2d 984, 986
(
That
said, we find these inflammatory comments to be inappropriate. In part, they invite the jury to make a finding
of guilt for a reason other than the evidence presented at trial. Were this issue properly preserved, and were
it not for the other errors that require reversal, we would reverse on the
basis of these comments alone. See
e.g., Kelly v. State, 2003 WL 1798084 (
Reversed and remanded.
DONE
AND ORDERED in Chambers, at
____________________________________
JOHN A. SCHAEFER, Circuit Judge
____________________________________
W. DOUGLAS BAIRD, Circuit Judge
____________________________________
NANCY MOATE LEY, Circuit Judge
cc: Public Defender’s Office
State Attorney’s Office