Bertone v. State

• Decision Date: 17 June 1969
• Docket Number: No. 68--728,68--728
• Parties: Joseph M. BERTONE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 400

224 So.2d 400

Joseph M. BERTONE, Appellant, v. The STATE of Florida, Appellee.

No. 68--728.

District Court of Appeal of Florida, Third District.

June 17, 1969.

Rehearing Denied July i3, 1969.

William M. Moran, Harry W. Prebish, Richard M. Gale, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.

HENDRY, Judge.

The appellant was the defendant below, and was adjudicated guilty and sentenced for the crime of rape. By this appeal, he raises two issues, contending that reversible error was committed at trial.

The first of the appellant's points on appeal urges that the court committed reversible error when it refused to grant a motion for mistrial after each of three separate outbursts, during direct examination, by the prosecutrix. The first remark complained of occurred when the victim, not in response to any question by counsel, volunteered that she had answered questions at defense counsel's office for three hours the preceding day, and that such encounter had resulted in her hospitalization. At that point, the witness was admonished by the trial judge and instructed not to volunteer any further statements. ¹ Minutes later, however, she again volunteered that she had been in a deposition which resulted in her hospitalization. At this point, the trial judge again cautioned the witness not to discuss the above matters. ² Finally, during the course of cross-examination, the witness, in a moment of exasperation, made remarks indicating that she had been threatened and that she was still in great fear for her safety and the safety of her children. The court directed the jury to leave the courtroom, and heard argument of counsel directed to whether or not a mistrial should be granted because of the prosecutrix' outburst. The court thereafter denied the motion for mistrial and ordered that prosecutrix be returned to the courtroom.

The record thereafter indicates a compassionate but firm admonition from the trial court to the prosecutrix, apprising her of the defendant's right to an impartial trial, and urging her to restrain from further emotional outbursts. Thereafter, the jury was returned to the courtroom and the trial proceeded. ³

It is the state's position that the complained of remarks were not so prejudicial as to raise the absolute legal necessity of stopping the trial and discharging the jury. Kelly v. State, Fla.App., 1967, 202 So.2d 901. We agree with the state's position, and observe that this area is obviously one of great latitude and discretion for the trial judge. It is our considered opinion that such discretion was not abused by a refusal to grant a motion for mistrial. See Furr v. State, 152 Fla. 233, 9 So.2d 801; Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174. We note in passing that the cases relied on most heavily by the appellant are primarily concerned with voluntary remarks made by a police or investigatory officer working on the criminal case which was being tried. See Nalls v. United States, (5th C.A. 1957) 240 F.2d 707; Perecinsky v. Commonwealth, Ky., 1960, 340 S.W.2d 233; People v. Trinchillo, N.Y., 1956, 2 A.D.2d 146, 153 N.Y.S.2d 685. In the situation sub judice, however, we do not feel that the same principles would control regarding the testimony being elicited from the victim of a brutal and heinous sex crime. Within his area of discretion, the trial judge is certainly allowed to recognize the emotional impact that a trial, complete with its probing revelation of the facts of the crime, would have on the prosecutrix. In conclusion then, we hold that the trial judge's admonition to the prosecutrix and thorough instructions to the jury were adequate to protect the appellant's interest in a fair trial.

As second grounds for reversal, the appellant contends that the court erred in permitting the county medical examiner to testify, over objection, that in his opinion, his findings from the examination of the victim were consistent with the medical history and details of the assault as related by her. On direct examination, Dr. Brodsky, the deputy medical examiner for Dade County, stated that the findings he made during his examination of the prosecutrix were consistent within reasonable medical probability with violent, forceable sexual intercourse. Thereafter, during redirect examination of Dr. Brodsky, he was asked, based upon the history related by the prosecutrix and the results of his examination, supra, whether he had an opinion within reasonable medical probability that the results of his examination were consistent with the history received from the prosecutrix. Defense counsel objected in these words: 'Objection. This is repetitious. He had previously stated that they were so consistent, your Honor.' The objection was overruled and the witness was permitted to testify that the examination was consistent with the history as related by the subject.

By this appeal, the appellant now contends that the witness was improperly allowed to testify, in his capacity as medical examiner, in regard to the relationship between his findings on examination and the history as given by the patient. Marshall v. Papineau, Fla.App., 1961, 132 So.2d 786. See also Troj v. Smith, Fla.App., 1967, 199 So.2d 285. The objection to such testimony is that it is essentially hearsay, being based upon information as related by the patient to the medical examiner. However, the general rule is that the grounds relied upon for objection at trial must be the same as those relied upon during appeal. Stated another way, 2 Fla.Jur. Appeals § 86 says in pertinent part:

'The proper method of preserving errors relating to the admissibility of evidence is to object when the evidence is offered to the trial court. If a proper objection is not interposed at the time the evidence is admitted by the court, the appellant will be regarded as having waived his objection * * * (T) hese principles apply to the objection as well as the admission of evidence.'

See also Shea v. State, Fla.App., 1964, 167 So.2d 767. Therefore, we conclude that the trial court did not commit reversible error in permitting the deputy medical examiner to state that his findings were consistent with the history as related to him at the time of the examination by the victim.

The state has cross-appealed another point relating to similar factual evidence which was excluded by the trial court however, in view of our holding, we deem it unnecessary to consider this cross-appeal.

Thus, for the foregoing reasons, the judgment and sentence being appealed are hereby affirmed.

Affirmed.

1 'Q I appreciate that. I am trying to orient the Court and the jury as to exactly where the Ankara is as it relates to other hotels which are on the ocean side of Collins Avenue. I would appreciate your trying to assist us in establishing that, if you can.

'A Yes, sir. I assisted you for three hours yesterday afternoon in your office. I gave you paper, I gave you all these questions, everything. I have been fully cooperative.

'Mr. Prebish: Your Honor--

'The Witness: It would me up in the hospital yesterday.

'The Court: All right.'

'The Court: When he asks you a question, just answer the question, don't volunteer any statements such as you have done here, and which was not in response to a question. Do you understand? Relative to what he was interrogating you.'

2 'The Court: All right, proceed.

'Q (By Mr. Prebish) Miss (* * *). you were not in my office yesterday; isn't that true?

'A I was at a deposition yesterday, yes.

'Q You were in my office yesterday at a deposition? Was Mr. Jacobs there with you?

'A Yes, sir.

'Q You are sure it was yesterday?

'Mr. Jacobs: I will stipulate that it was the day before yesterday, Counsel.

'The Witness: Yesterday, I am sorry, I was in the hospital yesterday.

'The Co...