IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 04-65 APANO
Opinion filed _________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Thomas Freeman
Mark Goettel, Esq.
Attorney for the appellant
Della Connolly, Esq.
Assistant State Attorney
ORDER AND OPINION
MATTER is before the Court on the defendant,
The defendant was convicted of resisting or obstructing an officer without violence when she attempted to help her boyfriend, Scott Williams, flee from a traffic stop. She claims that her conviction was the result of the State making an improper comment during her cross-examination.
The defendant’s defense to the charge was her testimony that she was elsewhere (babysitting) at the time of the alleged crime. The State cross-examined the defendant on her alibi; asking her who could verify that she was babysitting. The defendant responded: “If there was someone there I would have brought them with me today.” The State then asked: “You would have had Scott Williams testify here today?” Defense counsel objected, and the trial court sustained the objection. There was no motion for a mistrial and no motion for a curative instruction.
defendant claims the statement is fundamental error. Fundamental error is when,
but for the misconduct, the jury could not have reached the verdict it did. Miller v. State, 782, So.2d 426 (
The State’s question was correctly objected to and sustained. The State claims that it related to the defendant’s alibi, but it really had nothing to do with the alibi because the defendant claimed to be elsewhere at the time babysitting, not with her boyfriend Scott Williams. Asking her why she didn’t bring Scott Williams to testify has nothing to do with her alibi. Although the question was illogical and improper, it did not, however, become a feature of the trial. The question was asked, objected to, the objection was sustained, and the trial moved on. The State never mentioned the matter again.
A review of the trial transcript reveals that two police officers testified they clearly saw the defendant assist Scott Williams in fleeing the area. The defendant testified that she was not in the area, but could produce no independent witness to corroborate that. Given these facts, this Court cannot say that the guilty verdict was obtained solely because of the State’s isolated question. It is not, therefore, fundamental error. The judgment and sentence must be affirmed.
IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.
AND ORDERED in Chambers at
J. Thomas McGrady
R. Timothy Peters
John A. Schaefer
cc: State Attorney
Mark Goettel, Esq.