Bell v. State

108 So. 3d 639, 38 Fla. L. Weekly Supp. 87, 2013 WL 452130, 2013 Fla. LEXIS 204
CourtSupreme Court of Florida
DecidedFebruary 7, 2013
DocketNo. SC10-916
StatusPublished
Cited by29 cases

This text of 108 So. 3d 639 (Bell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. State, 108 So. 3d 639, 38 Fla. L. Weekly Supp. 87, 2013 WL 452130, 2013 Fla. LEXIS 204 (Fla. 2013).

Opinion

PER CURIAM.

In this case, we consider whether certain comments made by a prosecutor were impermissible. Gary Fontaine Bell seeks review of Bell v. State, 33 So.3d 724 (Fla. 1st DCA 2010), in which the First District Court of Appeal affirmed Bell’s convictions and sentences for lewd and lascivious molestation on a victim under twelve years of age by an offender eighteen years of age or older and for failure to appear. The First District addressed, inter alia, the following statement made by the prosecutor during closing argument in regard to the victim’s age, an element of the molestation charge: “[S]o without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.” Bell, 33 So.3d at 726 (emphasis omitted). The First District held that because the victim’s age “was not an issue which only [Bell] was capable of refuting, [the prosecutor’s] comment could not be construed as a comment on [Bell’s] right to remain silent.” Id. at 727.

The First District’s decision expressly and directly conflicts with Shelton v. State, 654 So.2d 1295, 1296 (Fla. 4th DCA 1995), in which the Fourth District addressed a similar prosecutorial comment on the lack of evidence contradicting an element of the crime of sale of cocaine: “But is there anything showing that [the defendant] didn’t make that sale? He was there.” The Fourth District held that the comment was improper because “it could have been interpreted by the jury as a comment on the defendant’s failure to testify.” Id. at 1297. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We agree with the First District that the prosecutor’s comment did not constitute an improper comment on Bell’s right to remain silent. The statement concerned an issue that witnesses other than Bell could have refuted. We determine, however, that the First District erred in holding that a second comment — which implicitly referenced Bell’s failure to testify — likewise did not constitute an improper comment on Bell’s right to remain silent. Moreover, we determine that two additional comments challenged by Bell in the First District, but not expressly addressed by that court, constitute improper burden shifting. We nonetheless conclude that objections to the improper comments were not preserved and that the comments did not constitute fundamental error and thus do not require reversal. We also reject an unpreserved argument with respect to the prosecutor’s voir dire questions. Accordingly, we approve the result of the First District’s decision affirming Bell’s convictions and sentences.

I. BACKGROUND

Bell was charged by amended information with one count of lewd and lascivious molestation on a victim under twelve years of age by an offender eighteen years of age or older and one count of failing to appear at a hearing held on August 27, 2007. Bell pleaded not guilty to both charges and moved to have the charges severed. The trial court denied Bell’s motion, and the case proceeded to a jury trial. The jury convicted Bell of both counts as charged. The trial court sentenced Bell to ten years in prison for the molestation charge and to a concurrent five-year sentence for his failure to appear, followed by five years’ probation. The trial court also designated Bell as a sexual predator.

During voir dire, the prosecutor asked the jury panel the following questions: “Now, would anyone just right off the bat tell me that if all I have is a[sic] word of a [644]*644child to evaluate as the evidence, that that’s not enough; I would need more?”; “Without hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and “[I]f you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”

Bell objected to these questions at the close of the State’s voir dire and moved for a new panel, arguing that the prosecutor’s questions were simply “a backhanded way” of asking prospective jurors to “promise to come back with a guilty verdict if we have a child saying he did it.” The trial court denied Bell’s request, but told Bell to “[fjeel free to rehabilitate as you see fit.” Although Bell stated on the morning of the trial that he “continued to renew [his] objections to the Court’s denial of the various pretrial motions that [he] filed,” Bell failed to renew his specific objection to the State’s voir dire.

During trial, the State presented evidence regarding the molestation charge through the testimony of both the victim and the victim’s mother. In addition, the State presented portions of a videotaped interview of the victim conducted by a case coordinator from the Gulf Coast Kids House, a child advocacy center composed of representatives from various agencies involved in the investigation and prosecution of child abuse cases. The testimony of the victim’s mother and the taped interview of the victim — taken shortly after the ■victim first reported the abuse to her mother — corroborated the essential facts of the victim’s testimony that: while Bell was married to the victim’s mother several years earlier, he had molested the victim on multiple occasions while her mother was at work and the victim’s sister was playing outside; and on at least one occasion, Bell had placed a ring on the victim’s finger prior to molesting her and told the victim that she was now his wife.

Regarding the charge of failure to appear, the State presented the testimony of the Escambia County Clerk of Court, a deputy with the Escambia County Sheriffs Office, and a prisoner transport officer for U.S. Transport to establish that Bell was not present at multiple court dates between August and December 2007 — including the August 27 hearing — and that Bell was discovered in Las Vegas, Nevada, in December 2007. Bell did not testify in his own defense, but he presented the testimony of his mother and sister in an attempt to discredit the testimony of the victim and her mother.

During initial closing argument, the prosecutor made several statements that Bell challenged on appeal. Specifically, on appeal Bell challenged the following comments, emphasizing the underlined statements.

As to count 1 the State must prove 2 elements beyond and to the exclusion of every reasonable doubt in order for you to convict the defendant. The first element is that [the victim] was under the age of 12. The evidence that we presented that was the testimony of her mother who testified as to her date of birth and importantly the testimony of [the victim] who you obviously could tell she was a young girl and told [you] her date of birth was 6/11/97[1] so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge.
[645]*645The second element is that Gary Bell intentionally touched in a lewd or lascivious manner the genitals, genital area or clothing covering the genitals or clothing covering the genital area of [the victim]. Now the evidence we have presented to prove that is of course the testimony of [the victim].
In cases like this, it is always a one-person’s word against another. In these particular cases—

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Cite This Page — Counsel Stack

Bluebook (online)
108 So. 3d 639, 38 Fla. L. Weekly Supp. 87, 2013 WL 452130, 2013 Fla. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-state-fla-2013.