County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Appellant’s arguments that the trial court erred by allowing the State to introduce evidence and make improper comments were not preserved for appellate review.  Affirmed.  Stewart v. State, No. CRC0907093CFAWS, (Fla. 6th Cir.App.Ct. January 4, 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

APPELLATE DIVISION

 

DONALD R. STEWART,     

                        Appellant,

                                                                        UCN:              512009CF007093A000WS

v.                                                                     Case No:       09-7093-CFAWS

                                                                        Lower No:    CTC09-006697-XBET-WS

             

STATE OF FLORIDA,                                           

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Marc H. Salton

 

Thomas Matthew McLaughlin, Esq. 

for Appellant

 

Kris Parker, A.S.A.

for Appellee

 

 

 

ORDER AND OPINION

            Appellant raises two issues on appeal.  Appellant first argues that the trial court erred by allowing the State to introduce irrelevant and prejudicial evidence during redirect.  Appellant also challenges prosecutorial comments.  We find that Appellant’s arguments are not preserved for appellate review.  Even if Appellant were not procedurally barred, the arguments lack merit.  This Court affirms the trial court as set forth below.

 

 

 

STATEMENT OF CASE

On May 14, 2009 around midnight, Officer Justin Case observed Appellant driving his Cadillac directly in front of him.  Appellant was at a stoplight and almost hit the median as he attempted to make a left turn from Gulf Drive onto U.S. 19.  Officer Case followed Appellant for about a mile to a mile and a half.  Appellant was unable to maintain a single lane.  The vehicle in the left lane had to swerve to avoid being hit by Appellant.  After Appellant made several traffic violations, Officer Case conducted a traffic stop. 

Appellant had several signs of intoxication.  He had an odor of alcohol on his breath.  His eyes were bloodshot and watery.  Appellant’s speech was slurred, slow and hesitant.  He was unable to stay on task.  Appellant admitted to drinking two drinks.  Based on his training and experience, Officer Case concluded that Appellant was operating a motor vehicle under the influence.  Officer Case notified Patrolman Denton, a DUI specialist. 

Officer Denton responded within two minutes to investigate the possible DUI.  He immediately noticed that Appellant had a dazed expression and stared into space.  Officer Denton also observed Appellant’s bloodshot, watery eyes and slurred speech.  Appellant had an odor of alcohol on his breath and coming from his person. 

On the field sobriety exercises, Appellant struggled.  He took a step, stopped, and could not complete the walk-and-turn test.   Appellant was also unable to perform the one-leg stand.  Appellant stated that he had an old leg injury; he normally wears a brace for it, but was not that night.  Appellant refused to perform other field sobriety exercises—instead he told Officer Denton, “Just take me to jail” and indicated that he knew he was impaired.  Officer Denton informed Appellant of the consequences of not completing the exercises, but Appellant still did not want to perform any further.  Appellant was placed under arrest, after which he refused a breath test.  A video taken by Officer Denton was introduced into evidence and played for the jury.

On cross-examination, Officer Denton testified that Appellant had a normal gait when he walked.  He asked Appellant whether he had any physical problems that might affect the field sobriety exercises.  Appellant responded that he had an old knee injury from twenty years ago.  Appellant informed him that he was going to have surgery on his knee the following month.  Officer Denton agreed that although the knee injury was from a long time ago, Appellant could still be suffering from it.  Defense counsel asked Officer Denton whether in his opinion someone with a knee injury should still be able to hold up a leg.  Officer Denton responded that if the injured knee was the one that was being raised, then it should be easier to perform.  Defense counsel further inquired, “Why?  How do you know that if he lifts his leg it doesn’t cause severe pain?  How would you know that it would be easier to lift that – I mean, how do you know it’s not one of those knees that lock and it would be easier to for him to stand on that one.  I mean do you know?”  Officer Denton responded that he did not know, but that Appellant did not state anything to that effect either. 

On redirect, the State inquired, “Did the defendant indicate to you whether he took any prescription medications?”  Defense counsel objected on the grounds that the question went beyond the scope of cross-examination.  The trial court allowed it because defense counsel would be allowed an opportunity to recross-examine.  Officer Denton testified that Appellant indicated that he takes Vicodin.  The State asked Officer Denton in the three hundred DUI investigations that he had performed, whether he arrested everyone.  Officer Denton replied that he did not.  No objection was made.    

During closing argument, the State made comments that Appellant challenges on appeal.  The first challenged comment was made at the start of the State’s rebuttal.  The State commented, “One, you’ve heard a lot about the injury that the defendant has suffered about twenty years ago but you can only go with what facts were presented through testimony.”  Defense counsel objected in that the State was asking the defense to produce evidence, which was improper.  The trial court sustained the objection and asked the State to proceed. 

The second challenged comment was made earlier during the State’s closing argument prior to its rebuttal.  The State commented, “Now, is it reasonable to think that these officers were trying to railroad the suspect here?  What would be their motivation?”  The State repeated Officer Denton’s testimony that he did not know who Appellant was, did not have “an ax to grind with him,” and did not get paid extra for making more arrests.  The State continued, “Why is he trying to railroad this individual?  Is it reasonable to think that this officer is trying to railroad this individual?” No objection was made.  A jury returned a guilty verdict for Appellant’s DUI charge.          

                       

LAW AND ANALYSIS

ISSUE I

            Appellant argues that the trial court erred when it allowed the State to introduce prejudicial and irrelevant evidence during redirect.  Specifically, Appellant contends that the trial court should not have allowed the State to inquire of Officer Denton whether Appellant indicated that he took any prescription medications.  The defense’s objection that the question went beyond the scope of cross-examination was allowed by the trial court because the defense would have an opportunity to recross-examine.  On appeal, Appellant argues that the evidence was irrelevant and unfairly prejudicial. 

            At trial, Appellant did not object on the basis of relevancy, which is now raised on appeal.  For an issue to be preserved for appeal, “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.” Chamberlain v. State, 881 So. 2d 1087, 1100 (Fla. 2004) (quoting Spann v. State, 857 So. 2d 845, 852 (Fla. 2003)).  Appellate review is therefore limited to the specific grounds for objection raised at trial.  Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982); see also Smith v. State, 7 So. 3d 473, 496 (Fla. 2009) (holding that claims based on grounds not objected to at trial cannot be considered on appeal).  Since Appellant failed to advance the specific ground of objection now raised for the first time on appeal, we conclude that it was not preserved for appellate review. 

            Even if the issue were preserved, Appellant’s argument would still lack merit.  The trial court did not abuse its discretion in allowing the State to inquire whether Appellant had indicated that he had taken any prescription medications.  The inquiry was within the scope of questions asked on cross-examination.  The defense had asked Officer Denton how he would know whether Appellant lifting his leg would not cause him severe pain, insinuating that Appellant was not able to perform the field sobriety exercises because he was in too much pain.  The defense also opened the door by asking Officer Denton whether Appellant could still be suffering from the knee injury that had occurred so long ago.  This question implied that Appellant was still suffering from the pain of the twenty-year old injury.  Although the State was attempting to explain, correct, or modify the testimony gathered from cross-examination, Appellant’s response that he took Vicodin for his knee pain only hurt the State’s case.  Appellant’s statement that he took prescription medications for his knee pain demonstrated that he was likely in great pain and could have difficulty performing the field sobriety exercises.  The State never attempted to imply that Appellant was under the influence of Vicodin at the time of driving, was in illegal possession, or anything else improper.  Therefore, Appellant was not prejudiced by the admission of that evidence, but actually benefitted from it.  The question was relevant and its probative value was certainly not substantially outweighed by the danger of unfair prejudice.  Since the trial court has broad discretion in determining the proper scope of examination of witnesses, and the defense opened the door by its questions on cross-examination, the question on redirect was proper and should be affirmed.  See, Johnston v. State, 497 So. 2d 863, 869 (Fla. 1986).  

             

 

ISSUE II

            Appellant also argues that he is entitled to a new trial based on three prosecutorial comments.  During closing argument, the prosecutor commented that the jury “heard a lot about the injury that the defendant has suffered about twenty years ago but you can only go with what facts were presented through testimony.”  The defense objected on the grounds that the State was asking the defense to produce evidence.  The court sustained the objection, but a motion for mistrial was not made.  Next, Appellant argues that the State also improperly bolstered the credibility of Officer Denton by asking whether he knew Appellant, had “an ax to grind with him,” or was paid more for making arrests.  The State commented on Officer Denton’s testimony during closing argument.  Finally, Appellant argues that the State also impermissibly bolstered the credibility of its witness by asking Officer Denton if he had arrested all three hundred people he had investigated for suspicion of DUI.  Appellant argues on appeal that these comments, taken individually or collectively, deprived him of a fair trial.

            Appellant is again procedurally barred from raising these prosecutorial comments on appeal.  Although Appellant objected to two of the comments at trial, a motion for mistrial was never made in any instance.  Therefore, this issue was not preserved for appellate review.  James v. State, 695 So. 2d 1229, 1234 (Fla. 1997) (the issue is preserved if the defendant makes a timely objection and moves for mistrial).  Even if the issue were preserved, any error, if any, was harmless due to the overwhelming evidence.  Therefore, it is

            ORDERED that Appellant’s judgment and sentence are hereby AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 4th day of January 2011.

            Original order entered on January 4, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.