County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Appellant’s argument that reversible error resulted from improper prosecutorial comments were not preserved for appellate review. Affirmed. Iasevoli v. State, No. CRC10005364CFAWS, (Fla. 6th Cir.App.Ct. May 16, 2011).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
v. Case No: CRC1005364CFAWS
Lower No: 09-02793-MMAWA-01
STATE OF FLORIDA,
Appeal from Pasco County Court
County Judge Anne Wansboro
Kimberly Nolan Hopkins, Esq.
Joseph Justice, A.S.A.
ORDER AND OPINION
Appellant argues that reversible error resulted from improper prosecutorial comments made during opening and closing arguments and that the cumulative effect of these comments resulted in undue prejudice to Appellant which merits reversal. Since these issues were not preserved for appellate review because Appellant did not move for mistrial, Appellant is now procedurally barred. Even if the issues were preserved, and even considering their cumulative effect, any error, if any, was harmless. Therefore, this court affirms the trial court as set forth below.
On May 27, 2009, Appellant was charged with one count misdemeanor petit theft. At the trial held before Judge Wansboro, on July 19, 2010, during opening argument, the prosecutor stated that the Wal-Mart loss prevention officer would testify about the confrontation with Appellant as:
They make contact with somebody and ask them to return to the loss prevention office and conduct an investigation. In this case, Mr. Iasevoli did not come peacefully. Instead of demurring to them or listening to what they had to say, he attempted to flee. He actually caused a physical altercation.
The defense objected in that the State indicated to the jury that it intended to introduce evidence of a Williams Rule allegation of resisting a merchant as unduly prejudicial and moved for mistrial. The State responded that it had no intention of trying to prove resisting a merchant and the fact that Appellant attempted to flee and resist the store’s attempt at detainment goes to his consciousness of guilt for petit theft. The trial court denied Appellant’s motion for mistrial. The defense again objected to this statement after the State finished its opening. The defense argued that fighting adds an additional element of resisting a merchant. The State responded that Deputy Galati would be testifying that he was responding to a fight in progress, but a possible petit theft. The trial court again denied the motion for mistrial.
Margel Digrigolli testified that she was the loss prevention officer for the Wal-Mart at State Road 54. On April 14, 2009, Ms. Digrigolli saw Appellant conceal alcohol in his backpack, which had appeared empty. To apprehend theft suspects, all elements must be met: (1) they select an item; (2) they conceal the item; (2) the loss prevention officer maintains visual contact; and (4) they pass all points of sale. If she lost contact, the suspect could not be apprehended. Since Ms. Digrigolli had all the elements met with Appellant, she attempted to apprehend him with the help of her partner and the store manager in the grocery vestibule. Ms. Digrigolli identified herself to Appellant, and she vaguely remembered that he resisted them. She made about 180 apprehensions last year.
The Sherriff’s Office was contacted. Ms. Digrigolli could not specifically remember if Appellant was taken into custody or not, but it is their protocol to call the Sherriff’s Department when they prosecute. Alcohol, undergarments, T-shirts, and socks were recovered from Appellant. All items were kept by Wal-Mart.
On cross-examination, Ms. Digrigolli testified that there are about 8,000 to 12,000 people in that store on any given day and about several hundred at one time. She agreed that someone must have seen how she interacted with Appellant, but that they never get the names of any customers who may have seen such an incident. When this incident occurred, Wal-Mart was not using digital, but VHS tapes, to record. There is no video of the incident. Ms. Digrigolli did not want to reveal the exact number of cameras in the store, despite defense counsel’s extensive questioning on the matter. In his line of questioning, defense counsel implied that Ms. Digrigolli was testifying against Appellant to look good for Wal-Mart, and suggested that perhaps Appellant was just wanting to take his loaded down backpack of Wal-Mart items to eat at Subway first. Defense counsel asked Ms. Digrigolli, “Isn’t it true that you’re coming across as if you weren’t aware that you were going to have to answer some unfriendly questions; correct?”
Deputy Galati testified next for the State. He was working on April 14, 2009 as a patrol deputy when he was called out to Wal-Mart. His theft report indicated that Appellant stole a six-pack of Mike’s Hard Lemonade, a pack of T-shirts, boxer briefs, and golf socks. Those items stayed at Wal-Mart after he made the report. Deputy Galati arrested Appellant that day.
During closing argument, after discussing all the evidence against Appellant, the prosecutor commented in regard to Ms. Digrigolli, “Now she was cross-examined. Mr. Tewell got up here and he got louder than I’m going to get. Just beat her up….” Defense counsel objected to the characterization, stating “I didn’t beat her up.” The trial court sustained the objection. The prosecutor responded by telling the jury that defense counsel did not beat her up, but made a big show because she did not want to tell how many cameras Wal-Mart had.
The jury found Appellant guilty as charged. The trial judge sentenced him to thirty days jail time. Appellant filed a timely notice of appeal on August 18, 2010.
LAW AND ANALYSIS
Appellant argues that reversible error resulted from improper prosecutorial comments made in both opening and closing argument and that the cumulative effect of these comments resulted in undue prejudice to Appellant. In opening argument, the prosecutor told the jury that the loss prevention officer would testify that Appellant did not come peacefully, attempted to flee, and caused a physical altercation. The defense objected based on the ground that the State was attempting to introduce unduly prejudicial Williams Rule evidence and that the State was now alleging an additional count of battery. Defense counsel then moved for mistrial, which was denied.
To preserve an improper comment for appellate review, a contemporaneous objection must be raised. Hagan v. Sun Bank of Mid-Florida, 666 So. 2d 580 (Fla. 2d DCA 1996). If an objection is sustained, then a motion for mistrial must also be asserted. In this appeal, Appellant is procedurally barred because a motion for mistrial was not made, and its admission was not so prejudicial as rise to the level of fundamental error.
Even if this issue were properly preserved, Appellant’s specific objection that the State was improperly attempting to introduce Williams Rule evidence lacks merit. Evidence of uncharged crimes that are inseparable from the crime charged or evidence that is inextricably intertwined with the crime charged does not constitute Williams Rule evidence. Griffin v. State, 639 So. 2d 966 (Fla. 1994). It is admissible because it is a relevant and inseparable part of the act at issue and is necessary to admit to adequately describe the incident. Id.
Appellant also argues that in closing argument, the prosecutor made additional improper comments. Specifically, in reference to defense counsel’s cross-examination of the loss prevention officer, Appellant challenges the prosecutor’s statement that, “Mr. Tewell got up here and he got louder than I’m going to get. Just beat her up….” Defense counsel’s objection was sustained, but Appellant never moved for mistrial. As such, Appellant is again procedurally barred from raising this prosecutorial comment on appeal.
Since Appellant objected to the comments, but never moved for mistrial in either instance, these issues were not preserved for appellate review. James v. State, 695 So. 2d 1229, 1234 (Fla. 1997). Even if the issues were preserved, and even considering their cumulative effect, any error, if any, was harmless due to the overwhelming evidence of guilt leaving no reasonable probability that the error affected the verdict. Caballero v. State, 851 So. 2d 655, 660 (Fla. 2003). Appellant is not entitled to a new trial. It is therefore,
ORDERED that Appellant’s conviction and sentence is hereby AFFIRMED.
DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 16th day of May 2011.
Original order entered on May 16, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.