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Fleitas v. State

867 So. 2d 512, 2004 Fla. App. LEXIS 2154, 2004 WL 360495
District Court of Appeal of Florida·Decided February 25, 2004·No. No. 3D02-3022·Published·Cited by 1 cases

Opinion

SCHWARTZ, Chief Judge.

The appellant’s conviction on several counts of child molestation must be reversed for a new trial because the record below is riddled with prejudicial error. We find it necessary to discuss briefly only the most prominent.

I.

First, for what we think and hope is the first and last time in legal history, an assistant state attorney was permitted to be called as a witness in the case and to testify, allegedly as “background,” to her investigation of the case itself, her opinion concerning the defendant’s guilt, her assessment of the victim’s credibility,1 and that the defendant had [513] committed many other uncharged crimes against the victim.2 Even an intimation in argument by the prosecutor of any one of these matters is patent reversible error. See, e.g., Ruiz v. State, 743 So.2d 1 (Fla.1999); Gore v. State, 719 So.2d 1197 (Fla.1998); Lewis v. State, 780 So.2d 125 (Fla. 3d DCA 2001); Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990); Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So.2d 1088 (Fla.1982). The prejudicial effect of

actual testimony by a prosecutor under oath as to all of them defies the most hyperbolic characterization.

II.

Although, because the victim was over eleven, child hearsay could not be admitted, the trial court permitted the investigating police officer — purportedly again as background or as a means of “understanding the event ... that he in[514] vestigated — to testify extensively as to prior accusations made by the victim against the defendant. This, too was clearly error. See State v. Baird, 572 So.2d 904 (Fla.1990); Claridy v. State, 827 So.2d 1088 (Fla. 1st DCA 2002); Garcia v. State, 659 So.2d 388 (Fla. 2d DCA 1995); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), review denied, 411 So.2d 384 (Fla.1981).

Reversed and remanded.

Footnotes

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Fleitas v. State, 867 So. 2d 512, 2004 Fla. App. LEXIS 2154, 2004 WL 360495 (Fla. Ct. App. 2004).

867 So. 2d 512 (Fleitas v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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