Pineda v. State

211 So. 3d 1129, 2017 WL 697728, 2017 Fla. App. LEXIS 2350
CourtDistrict Court of Appeal of Florida
DecidedFebruary 22, 2017
Docket3D15-2542
StatusPublished

This text of 211 So. 3d 1129 (Pineda v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pineda v. State, 211 So. 3d 1129, 2017 WL 697728, 2017 Fla. App. LEXIS 2350 (Fla. Ct. App. 2017).

Opinion

ROTHENBERG, J.

The defendant, Graciela Pineda, appeals her convictions for lewd or lascivious molestation of a child under twelve years of age and lewd or lascivious conduct on a child under sixteen years of age. The defendant claims that she is entitled to a new trial because the unobjected-to testimony of the lead investigator and the unobject-ed-to comments by the prosecutor during closing arguments improperly bolstered the victim’s credibility and constitute fundamental error because they deprived the defendant of a fair trial. Based on our conclusion that the complained-of testimony and statements do not constitute improper bolstering of the victim’s credibility and/or they were invited by defense counsel, we affirm.

I. FACTS

The State charged the defendant with the above referenced crimes. At the time of the charged offenses, the ten year old victim, her mother, and the victim’s two younger siblings were living at a facility for female victims of domestic violence and their children. The charges were based on the victim’s allegations that she woke up and found the defendant, who was a resident at the domestic violence facility and a guest at the victim’s home, sitting on the bed and leaning over her, touching her (the victim’s) breast under her top, and thereafter, the defendant attempted to kiss the victim and pull down her panty.

*1131 Based on the lack of physical evidence or an eyewitness, the State’s case rested on the credibility of the victim. During opening statements, the defense set forth its defenses for the jury—the victim, who had a motive to fabricate the allegations against the defendant, was lying, and law enforcement’s investigation of the case was “substandard at best.”

At trial, the lead investigator, Sergeant Utset, testified on direct examination as follows. He was a member of the Special Victims Bureau assigned to investigate the allegations made by the victim against the defendant. When he arrived at the domestic violence facility, he spoke with the victim without anyone else being present. He asked the victim what had occurred, and the victim, who was crying and appeared to be upset and scared, gave him a “summary of what happened,” implicating the defendant. Sergeant Utset did not ask the victim for details because he was going to refer her for a forensic interview at Kristi House.

Sergeant Utset also testified that he interviewed the defendant, who was then nine months pregnant, later that evening at the police station after she waived her Miranda 1 rights. During this interview, the defendant claimed that the victim was not telling the truth. When Sergeant Utset asked the defendant why the victim would make up these allegations, the defendant responded that the victim was upset because she (the defendant) told the victim’s mother that she (the defendant) had seen the victim holding hands with a boy who lives at the facility. After Sergeant Utset told the defendant that this explanation did not make sense, the defendant told Sergeant Utset that the victim’s mother got the victim to make up the accusations so that the victim’s mother could keep the defendant’s car if the defendant went to jail. When Sergeant Utset told the defendant that this statement also did not make any sense, the defendant became upset and told Sergeant Utset that she would not have done what the victim was accusing her of because she (the defendant) was pregnant with a girl. Sergeant Utset terminated the interview because the defendant was becoming very upset.

During cross-examination, defense counsel asked Sergeant Utset about his investigation, and the following exchange occurred:

Q: You are a detective?
A: Yes.
Q: And that is your job to detect and ask questions?
A: Yes, it is.
Q: You just don’t take somebody’s word?
A: Why would they lie. What reason would they have to lie?
Q: Your job—is that your job just to take what anybody says, to be gospel?
A: To be gospel?
Q: You said why would anybody lie?
A: Why would the victim lie.
Q: Well, the victim is a person, right?
A: She is a child.
Q: You don’t think that children lie?
A: Not about serious situations, no.
Q: You indicated earlier on direct examination—so, every child that you’ve interviewed, you’ve arrested the person who they made the accusation against and you sustained an accusation, correct?
A: No, sir.
Q: Why would a child lie? Well, let’s see. Let’s ask the more pertinent question. Why wouldn’t a detective do a complete examination?
A: I did do a complete examination.

*1132 Thereafter, defense counsel continued to question Sergeant Utset about the manner in which he conducted the investigation, such as waiting six months to photograph the residence, failing to check for any DNA, and failing to interview certain individuals.

On re-direct by the State, Sergeant Ut-set testified as follows:

Q: Are you trained to look for motive when you speak to children?
A: Yes, ma’am.
Q: Did you see any in this case?
A: I did not.

During closing arguments, the State argued that the victim’s mother and the defendant were good friends. The victim liked the defendant. The victim and the defendant had done each other’s nails and hair and the defendant had given the victim her jewelry. There was no reason for the victim to make up the allegations, and the explanations given by the defendant at the police station regarding why she thought the victim would make up these allegations did not make sense.

During closing arguments, defense counsel argued that the victim, who wants to be an actress, fabricated the allegations and gave an “Oscar performance” in an effort to back up her lies. In response to defense counsel’s argument, the State argued again in its rebuttal that there was no reason for the victim to lie.

The jury found the defendant guilty as charged, and she was later sentenced. The defendant’s appeal followed.

II. ANALYSIS

The defendant contends that she is entitled to a new trial because the unobjected-to testimony of the lead investigator, Sergeant Utset, and the unobjected-to comments by the prosecutor during closing arguments constitute fundamental error as the testimony and comments improperly bolstered the victim’s credibility, thereby depriving the defendant of a fair trial.

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Bluebook (online)
211 So. 3d 1129, 2017 WL 697728, 2017 Fla. App. LEXIS 2350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pineda-v-state-fladistctapp-2017.