King v. State, 93-03689
| Decision Date | 16 September 1994 |
| Docket Number | No. 93-03689,93-03689 |
| Citation | 642 So.2d 649 |
| Parties | 19 Fla. L. Weekly D1979 Walter C. KING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Violet Assaid, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kimberly D. Nolen, Asst. Atty. Gen., Tampa, for appellee.
Walter C. King appeals from his conviction of capital sexual battery for digitally penetrating his eight-year-old great-niece. He contends that several trial errors occurred which deprived him of a fair trial. We find reversible error in two of the several issues he raises.
There is no need to provide a recitation of the evidence adduced at trial. Suffice it to say that the state presented a prima facie case of capital sexual battery, a violation of section 794.011(2)(a), Florida Statutes (1991). The evidence adduced could also have supported a jury verdict of lewd, lascivious, or indecent assault or act upon or in the presence of a child, a violation of section 800.04. At the jury charge conference, prior to closing arguments by counsel, King's attorney requested, but was wrongly denied, a jury instruction on the lewd and lascivious assault crime. See Kolaric v. State, 616 So.2d 117 (Fla. 2d DCA 1993). Thus, defense counsel was forced to present her closing argument without being able to urge the jury that they could find her client guilty of this less serious felony. 1 After closing arguments concluded, the prosecutor, joining in defense counsel's previous request to give the lewd and lascivious assault instruction, prevailed upon the judge to reverse himself and give the jury that instruction since there was evidence to support it. Even though the instruction was ultimately given after closing arguments, we agree with the appellant that it was too late and he was thus deprived of his right to a fair trial. Closing arguments are the last and best opportunity trial counsel have to directly address the jury on what they should or should not decide within the parameters of the proper instructions the jury is about to receive from the trial judge. The tardy correction the trial judge made here did not cure the error that had occurred.
A second reversible error occurred during presentation of the evidence. The victim had had a private conversation with her mother after the incidents occurred. In this conversation she related what the uncle had done to her. The state sought to admit evidence of the victim's statement by way of testimony from the mother about this conversation. A hearing was held to determine if the hearsay testimony met the requirements for admission under section 90.803(23). However, the trial judge, in deciding to admit the hearsay, did not make the requisite findings on...
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...1st DCA 2002), which certified conflict with the decisions in Velazquez v. State, 648 So.2d 302 (Fla. 5th DCA 1995), and King v. State, 642 So.2d 649 (Fla. 2d DCA 1994). The conflict issue is whether lewd and lascivious conduct as set forth in section 800.04, Florida Statutes (1997), is a p......
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...an instruction on such offense as a permissive lesser-included offense of sexual battery under section 794.011(2). See King v. State, 642 So.2d 649 (Fla. 2d DCA 1994).8 On appeal, Velazquez also contended that the trial court erred in denying his motion to suppress items seized from boxes w......
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Welsh v. State, 1D01-648.
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