County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment - Not fundamental error for the State to ask the defendant why she did not bring a particular witness to testify. Judgment and sentence affirmed. Circle v. State,  No. CRC 04-65 APANO, (Fla. 6th Cir. App.Ct. January 10, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

MELISSA CIRCLE

 

            Appellant,

 

Appeal No. CRC 04-65 APANO

UCN522004AP000065XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

____________________________/

 

 

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

 

 

            THIS MATTER is before the Court on the defendant, Melissa Circle’s, appeal from a judgment and sentence imposed following her conviction for resisting or obstructing a law enforcement officer without violence. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            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.

            The 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 (Fla. 2d DCA 2001). The error must “reach 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.” Farina v. State, 937 So.2d 612, 629 (Fla. 2000) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)).

            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.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of January, 2007.

 

                                                                        ___________________________

                                                                                    J. Thomas McGrady

                                                                                    Circuit Judge

 

 

 

 

                                                                        ______________________________

                                                                                    R. Timothy Peters

                                                                                    Circuit Judge

 

 

 

 

                                                                        ______________________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

 

 

cc:        State Attorney

            Judge Freeman

            Mark Goettel, Esq.