Stephenson v. State

31 So. 3d 847, 2010 Fla. App. LEXIS 2524, 2010 WL 711790
CourtDistrict Court of Appeal of Florida
DecidedMarch 3, 2010
Docket3D08-1107
StatusPublished
Cited by6 cases

This text of 31 So. 3d 847 (Stephenson 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
Stephenson v. State, 31 So. 3d 847, 2010 Fla. App. LEXIS 2524, 2010 WL 711790 (Fla. Ct. App. 2010).

Opinions

SCHWARTZ, Senior Judge.

Amy Stephenson appeals from her conviction and twenty-five year sentence1 for aggravated manslaughter of a child, a first degree felony, following a jury verdict finding that the death of her thirteen-month old daughter was caused “by the neglect of Defendant, a caregiver.” § 782.07 Fla. Stat. (2007).

[848]*848The State alleged and the jury apparently agreed that the child, who had suffered serious health problems since her premature birth and throughout her short life,2 died as a result of the mother’s conduct in depriving the child of food and other care. Although there was sufficient evidence to support the verdict, the case was hotly contested on numerous issues, including whether any alleged misconduct was the cause of the child’s death3 and the degree of the crime, if any, involved in the mother’s care of the child, particularly, whether she may have been guilty of a lesser offense such as neglect of a child by culpable negligence with great bodily harm, a second degree felony. See § 827.03(3)(b) (2007).

It is in this context that, without considering any of the other issues presented,4 we reverse on the ground that, although there was no appropriate objection, fundamental error occurred when the prosecutor commented on cross-examination and again during final argument on the fact that in the course of her pregnancy, the mother had contemplated aborting the decedent child. The transcript reveals the following:

Q: [Prosecutor] Let’s go back to when you were in the hospital. When you were in the hospital after delivering Jasmine, you had occasion to speak to Colleen Cullen [a social worker employed by Baptist Hospital]; isn’t that correct?
[Defense counsel]: Your honor—
A: [defendant] Not that accurate, not.
Q: What did you—
A: I had thought about it.
Q: You had thought about terminating your pregnancy; is that correct?
A: When I first learned that I was pregnant.
Q: And that’s part of the reason you had late prenatal care; isn’t that correct?
[849]*849A: No.

Emphasizing this point in closing, the prosecutor stated:

Then, of course, the defendant testified. She admitted at first she was ambivalent about whether or not she wanted this baby at all.

The cases tell us — as if we needed to be told — that “abortion is one of the most inflammatory issues of our time,” Cook v. State, 232 Ga.App. 796, 503 S.E.2d 40, 42 (1998), and, more important, that one who takes or even approves of this course is very adversely regarded by many in our society. Accordingly, numerous decisions reverse convictions after trials which improperly implicate that issue, including several, as in this case, which are necessarily based on a finding of fundamental error in the absence of proper preservation. See Billett v. State, 317 Ark. 346, 877 S.W.2d 913, 915 (1994) (approving decision not to allow evidence of witness’s prior abortions and defendant’s condemnation of her to show bias, where bias had otherwise been shown and “any probative value was clearly outweighed by the danger of unfair prejudice”); Brock v. Wedincamp, 253 Ga.App. 275, 558 S.E.2d 836, 842 (2002) (observing “even if evidence of the decedent’s abortions and adoptions and sex life were somehow relevant, courts must consider whether ‘its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury).’ ” (quoting Metro. Property & Ins. Co. v. Shepherd, 166 Ga. App. 300, 304 S.E.2d 74 (1983) (citation and punctuation omitted.)); Collman v. State, 116 Nev. 687, 7 P.3d 426, 436 (2000) (agreeing that information about abortion “was a collateral matter and the minimal value of it was ‘overwhelmingly outweighed’ by the danger of unfair prejudice, confusing the issues, and misleading the jury.”); Schneider v. Tapfer, 92 Or. 520, 180 P. 107, 108 (1919) (testimony that defendant had approved of abortion held irrelevant to issues involved and “was simply evidence which tended to debase and degrade the defendant.... [Cjertainly none could have been offered which was more likely to inflame and prejudice the minds of the jury against the defendant”); see also Hudson v. State, 745 So.2d 1014, 1016 (Fla. 5th DCA 1999) (concluding “that the inflammatory evidence of two prior abortions certainly contributed to Hudson’s conviction” and thus should not have been admitted); Wilkins v. State, 607 So.2d 500, 501 (Fla. 3d DCA 1992) (calling evidence that the defendant and his wife considered having an abortion of the baby-victim “excludable ... as ... an impermissible assault on the defendant’s character and was otherwise irrelevant and inflammatory”). Cf. People v. Harris, 633 P.2d 1095, 1100 (Colo.App.1981) (concluding that admission of evidence that defendant suggested that wife’s pregnancy be aborted (in trial for son’s murder) not sufficiently prejudicial to warrant retrial, but acknowledging “it would have been better to exclude some of such evidence”).

In addition, there are many cases in which the injection of other matters which are similarly objectionable' — and sometimes significantly less so — has resulted in reversal, again often in the absence of appropriate objection below. Shootes v. State, 20 So.3d 434 (Fla. 1st DCA 2009) (concluding that defendant’s right to an impartial trial was prejudiced by large number of law enforcement personnel in courtroom on last day of trial); Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997) (observing that it is “highly improper to interject even a reference to, let alone an accusation of racism which is neither justified by the evidence nor relevant to the issues”); Gonzalez v. State, 588 So.2d [850]*850314, 315 (Fla. 3d DCA 1991) (finding fundamental error, in part, based on reference to defendant as a “sexual pervert”); see also Gluck v. State, 62 So.2d 71, 73 (Fla.1952) (observing “[n]either [defendant’s] religion, character, alleged prior offense, nor occupation were proper issues in the case ... [and that prosecutor’s comments] were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury”); Cordoba v. Rodriguez, 939 So.2d 319, 321-22 (Fla. 4th DCA 2006) (deeming fundamental error the admission of a physician’s statement that an article (an outside source) that stated that “99 percent of automobile accidents result in lawsuits” was the basis for his conclusion that plaintiffs had not sustained permanent injuries, and observing “ ‘[fundamental error,’ for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury.”);

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Stephenson v. State
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Bluebook (online)
31 So. 3d 847, 2010 Fla. App. LEXIS 2524, 2010 WL 711790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephenson-v-state-fladistctapp-2010.